Th UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY h \ r^ iWVNN' ON THE LAW OF INSURANCE. BY WILL.ARD PHILLIPS. PUBLISHED BY WELLS AND LILLY, NO. 98, COURT-STREET. Treadwell's Power Press. 1823. T DISTRICT OF MASSACHUSETTS, TO WIT : District Clerk^s Office. Be it remembered, That on the eighth day of August, A. d. 1823, in the forty-eighth year of the Independence of the United States of America, Willard Phillips, of the said district, has deposited in this office the title of a book, the right whereof he claims as author and proprietor, in the words following, viz. : ' A Treatise on the Law of Insurance, by Willard Phillips :' in conformity to the act of the congress of the United States, en - titled, ' An act for the encouragement of learning, by securing the copies of maps, charts, and books, to the authors and proprietors of such copies, during the times therein mentioned ;' and also to an act, entitled, ' An act, supple- mentary to an act, entitled, an act for the encouragement of learning, by securing the copies of maps, charts, and books, to the authors and proprietors of such copies, during the times therein mentioned ; and extending the bene- fits thereof to the arts of designing, engraving, and etching historical and other prints.' JNO. W. DAVIS, Clerk of the District of Massachusetts. PREFACE. At the lime of beginning this treatise, it was intended that it should include the whole subject of insurance, not excepting the legal proceedings, but it was found to be impracticable to pursue the work upon this plan, without extending it to more than one volume. Under these circumstances, it was thought expedient to omit the legal proceedings, as being the part of the subject, of the least practical importance, since the legal proceedings upon a policy, do not differ materially from those upon other written contracts. The different parts of the subject of insurance are so blended together, and implicated with each other, as to render a simple and methodical arrangement very difficult, and, in the opinion of some persons, even impossible. The perplexity which seems, in some degree, to belong to the subject, was increased, in conse- quence of the numerous points and decisions, which had not been embodied in any elementary work. If it shall be found that the difficulties, arising from these causes, have not been wholly over- come, and that some cases and points are not inserted in the places, where they might have been most appropriately introduced, 1 hope that the very great difficulty of disentangling, and reducing to complete order, such multifarious and complicated materials, will be regarded as some apology for any defect of this sort. In collecting and arranging the greatmassof materials, which have been for a long time accumulating in this science, it will be found, no doubt, that some points, and even cases, of an impor- tance sufficient to entitle them to a place in the work, have been IV PREFACE. " overlooked ; and it is not improbable, that, in some instances, cases have been misunderstood, and opinions inaccurately repre- sented. I have endeavoured to prevent such omissions and mis- takes from being very numerous. Although I have not hesitated to express my opinions and rea- sons without reserve, and without, at the same time, testifying my respect for those from whom I have differed, not thinking that the occasion required any declaration of this sort ; yet I have not thought it necessary, in all cases, to state what I understood to be the law. In many instances, the diverse opinions of judges, and of writers, are given without any comment, or any intima- tion in regard to the preponderance of authority or reasons, in favour of either side of a question. It would doubtless have been more prudent, on my part, and perhaps not less acceptable to my readers, had I more frequently pursued this course. Where different opinions are thus cited in regard to particular doctrines, and so, in many cases, where opinions are cited with- out any comment, or reference to opposite opinions, it is left wholly to the judgment of the reader, to adopt or reject the doctrine in dispute, or the opinion stated, as he may be deter- mined by the reasons or authority. I do not wish to have the mere circumstance of stating a doctrine or practice, considered as necessarily implying my own opinion respecting it. In many cases the reasons stated by the judges or writers quoted, and the comparative authority on the different sides of a question, leave the mind free from any doubt, in judging of what is the law. Some parts of the subject of insurance have not, as yet, been pursued beyond the mere rudiments, and still rest upon broken hints, and general and hasty suggestions ; in such cases, to arrive at any satisfactory conclusions, would require elabo- rate investigation, and a longer argument and more discursive speculation, than can couvcniently find a place in an elementary work. In considering a proposition to be law, or not to be so, the mind is necessarily determined by the reasons and the authority, in its favour, or against i(. If the inquiry relates to a disputed point of which a particular court has jurisdiction, the question is, not merely what reasons or weight of authority there may lir; ill fiivour of ciilicr side, IjuI, also, what would probably be the decision of that p.irticnlar tril)nnal. In such a case, and for the purpose of the inquiry, the authority of that tribunal out- weighs all (ippij.siie anlhorily and reasons. PREFACE. When the inquiry does not relate to the probable decision of any one tribunal, different persons must necessarily adopt differ- ent modes of determining what is law. If a person supposes himself not to be skilful and well informed, in regard to the sub- ject under consideration, he can only adopt the opinion of the judge or writer, whose judgment he thinks it the most safe to fol- low. He must decide upon authority merely, and be implicitly guided by the opinions of those men whom he supposes to have had the best means, and to have been the most capable, of judg- ing, and to have formed their opinions the most deliberately, and after the most thorough investigation. In proportion as a person considers himself skilful and competent to judge, he is the less determined by mere authority. But very few persons consider themselves to be so perfectly masters of any branch of legal science, as to throw off all restraint of authority ; and those who are, with good reason, the most confident of their skill and knowledge, are usually, in forming their opinions, influenced, more or less, by authority, according to the particular subject of inquiry. In most cases it is necessary to take into considera- tion what has been practised and decided, since the mere fact that a thing has been decided or practised in a certain manner, is, in itself, a reason, of greater or less weight, for continuing the same practice, or adhering to the established doctrine. In many branches of the law, precedent, as such, and inde- pendently of the reasons upon which it was formed, is entitled to great respect, and is not unfrequently conclusive of the law. But where a decision or opinion rests upon a certain principle, the applications of which, in different instances, must be consist- ent, and also conformable to other acknowledged principles ; precedent has less weight. Concurrent decisions, however nu- merous they may be, cannot establish a conclusion, which is dravi^n from insufficient premises ; or cause inconsistent proposi- tions to be law. A very great part of the law of insurance con- sists of deductions from certain principles, which constitute a science, in regard to which, mere precedent cannot have very great influence, since deductions inaccurately made, lead to con- tradictions and inconsistencies, which no authority can vindicate. In some branches of this subject, precedent is of authority and weight, but the greater part of the doctrines comprehended in this science, must stand exclusively upon the reasons and fixed principles, from which they are inferred. The inferences which may be clearly drawn from those principles, are not VI PREFACE. made to be law, and cannot cease to be law, in consequence of any number of decisions, by whatever authority they may be supported. Notwithstanding a diversity of opinions and judg- ments, those doctrines still remain the unvarying and unalterable law, and they need but to be presented wiih the reasons on which they depend, to receive the assent of a mind which is capable of perceiving their mutual connection and dependency. No branch of law can more properly be denominated a science, than insurance ; and since this contract is substantially the same in different countries, and continues to be the same now that it was formerly, the decisions of courts, whether ancient or modern, and the opinions and reasonings of writers, whether American, English, Italian, or French, are equally applicable to it. Although much has been written, and a very considerable number of cases decided, upon the subject of losses, still this branch of insurance is not very satisfactorily investigated, and settled, in the books. I have endeavoured to acquaint myself more fully with it, by communication with experienced and emi- nent insurers. In this respect I am under great obligations to several gentlemen ; in particular, to Christian Mayer, Esq. Pre- sident of the Patapsco Insurance Company of Baltimore ; and especially to the late Hon. George Cabot, President of the Boston Marine Insurance Company, who, during his life, took a friendly interest in my labours, and was always ready, in the most obliging manner, to discuss the subjects of inquiry which I proposed, and gave me, as far as he could, all the advantage of his scientific views, accurate discrimination, and long experience. 1 do not, however, wish that any particular parts of the work should be understood to have the sanction of his authority, nor that any of the other gentlemen above alluded to, should be considered responsible for any of the doctrines laid down, or any of the statements respecting usage and practice. W. P. Boston^ August llh^ 1823. CONTENTS. CHAPTER I. OF THE CONTRACT OF INSURANCE. PAGE. Section 1 . What insurance is . . . _ i 2. The form of the insurance » - - 3 3. An agreement for insurance - - - 5 4. The usual stipulations of the contract - 6 6. What makes a part of the contract - - 8 6. Renewal of the contract - - - 11 7. Assignment of the policy - - - ib. 8. Alteration of the policy - - - 12 9. Correction of mistakes - - - - 13 10. Usage affects the construction of the policy - 14 11. The written, controls the printed part of the policy 18 CHAPTER 11. WHO MAY BE INSURED * - 19 CHAPTER III. INSURABLE INTEREST- Section 1 . What interest is sufficient - - - 26 2. The legality of the Interest - - - 29 3. Interest of a mortgager - - - 41 4. Interest of a mortgagee - - - - ib. 5. Interest of a lender, in hypothecated property 42 6. Interest of a borrower, in hypothecated property 43 7. Interest of a consignee, factor, or agent - ib. 8. Interest in profits * - - - 4G Vlll CONTENTS. PAGE. Section 9. Interest of captors and prize agents - - 47 10. Interest of the charterer of a ship - - 61 11. Interest in freight - - - - ib. 12. Interest in fishing voyages - - - 55 13. Interest in reinsurance - - - 56 14. Interest in lives - - - - - ib. CHAPTER IV. DESCRIPTION OF THE ASSURED - 57 CHAPTER V. DESCRIPTION OF THE SUBJECT. Section 1. What description is in general sufficient - - 64 2. Goods, wares, merchandise, &c. - - 66 3. Profits and commissions - - - - 70 4. The ship - - - - - , 71 5. Freight ----- - 72 6. Reinsurance - - - - . - 74 CHAPTER VI. THE PREMIUM - - - 75 CHAPTER VII. REPRESENTATION AND CONCEALMENT. Section 1. What constitutes a representation or concealment 80 2. What facts must be disclosed. Misrepresentation 85 3. The withdrawing or waiver of a representation 106 4. Compliance witii a representation - - 109 5. Effect of a concealment or misrepresentation 1 10 CHAPTER VIII. IMPLIED WARRANTIES AND CONDITIONS. Section 1. What warranties and conditions are implied - 112 2. Seaworthiness of the ship - - - 113 3. National character and legal conduct - - 119 CONTENTS. IX CHAPTER IX. EXPRESS WARRANTIES AND CONDITIONS. Section 1. What constitutes an express warranty 2. Compliance with an express warranty 3. Time of sailing . - . . 4. Convoy - - - - - 5. IM'eutral property — ownership 6. Origin of property warranted neutral 7. Property warranted neutral, must be accompanied with proofs of its neutral character - - 138 8. Warranty ofneutral property requires neutral conduct 142 9. Particular warranties and conditions - - 153 PAGE. 124 127 120 134 135 137 CHAPTER X. WHAT RISKS MAV BE INSURED AGAINST 157 CHAPTER XI. THE VOYAGE AND PERIOD OF THE RISK. Section 1 . At what time or place the risk begins 2. Continuance and end of the risk. 161 170 CHAPTER XII. DEVIATION AND CHANGE OF THE RISK 179 CHAPTER XIII. RISKS COVERED. Section 1. Acts of Agents - * > . ^24 2. Barratry - . . . . 230 3. The Insurers are not liable for ordinary perils or losses 245 4. Damage arising from the qualities of the subject ib. 5. Events which enhance the risk - - 247 6. Loss by lire . - . - . 248 7. Perils of the sea .... 249 B CONTENTS. PAGE. Section 8. Piracy, robbery, theft . - . - 257 9. Capture and detention - - - 259 10. Risk from prohibited and contraband trade - 276 11. Other perils — general clause - - - 281 12. Remote and consequential losses - - 283 13. Concurrence of different perils - - 285 14. Loss upon one subject by damage to another - 288 15. What losses are within the period of the risk 290 16. Risks excepted - - - - - 292 17. Risks in bottomry interest . - - 300 CHAPTER XIV. AMOUNT OF INSURABLE INTEREST. Section 1. Valued policies _ . _ . 304 2. Open policies . . _ - . 320 3. Cause as to prior insurance - - - 326 4. Increase and diminution of the interest - - 327 CHAPTER XV. GENERAL AVERAGE. Section 1 . What distinguishes general, from other losses - 330 2. Jettisons and sacrifices of a part of the interest at risk 331 3. No contribution is made unless the impending peril is avoided - - - - - 341 4. Expense of delay to refit on account of sea-perils 344 5. Expense of delay to claim captured property - 349 G. Expense of detention by embargo - - 352 7. Whether contribution must be claimed in the first in- stance from the parties concerned - 353 8. Amount of the contribution - - - ib. y. In reference to whrit time the contributory value is estimated . . . . , 35(5 10. ContriI)utory value of the ship - - 358 11. Contributory value of freight ... 360 12. Wiiat goods contribute, and at what value - 363 13. Liibiljty of Insurers to pay contributions - - 366 CONTENTS. XI CHAPTER XVI. PARTICULAR AVERAGE OR PARTIAL LOSS. PAGE. Section 1. On the ship ----- 369 2. On freight - - - - - 372 3. On goods ----- 375 CHAPTER XVII. TOTAL LOSS AND ABANDONMENT. Section 1. In what cases abandonment is necessary in order to give a claim for a total loss - - - 382 2. What interest, and what control of the property are requisite to support an abandonment - 388 3. Of the ship - - - - - 389 4. Of the cargo - . - - 412 5. Of freight - - - - - 424 6. Of profits and commissions . - - 430 7. Of different subjects insured in the same policy - 433 8. The existing facts constitute the loss - - 436 9. Upon what intelligence abandonment may be made 440 10. Within what time abandonment may be made - 441 11. Form of abandonment - - _ 447 12. Acceptance of abandonment - . - 449 13. Revocation of abandonment - - . 452 14. Whether an abandonment may be defeated by subse- quent events - . - - 454 15. Effect as to rights of property, claims, and liabilities 458 16. Effect as to conduct of agents - - - 468 1 7. Effect of the abandonment of the ship as to freight 473 18. Amount recoverable - - - - 481 CHAPTER XVIII. EXCEPTED LOSSES THE MEMORANDUM - 483 CHAPTER XIX. PRELIMINARY PROOF - - 497 XII CONTENTS. CHAPTER XX. PAGE. ADJUSTMENT OF A CLAIM FOR A LOSS - 600 CHAPTER XXI. RETURN OF PREMIUM. Section 1 . Where there is no risk ... 503 2. Stipulation for return of premium - - 510 3. Forfeiture of a warranty or condition - 512 4. Illegality and fraud - - - - 614 5. What payment is a ground to claim return. - 518 CHAPTER XXII. DUTY AND LIABILITY OF AGENTS AND BROKERS 519 TREATISE ON ^fl€ 3iAl» 0f ^nuuv&ntt^ CHAPTER I. OF THE CONTRACT OF INSURANCE. Section 1. TVIiat Insurance is. Insurance is a contract whereby, for a stipulated considera- insurance tion, one party undertakes to indemnify the other against certain defined. risks. The party undertaking to make the indemnity, is called the insurer or underwriter ; the party to be indemnified, the as- sured 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 property or rights of the assured, in respect to which he is liable to loss, the subject or insurable interest. This contract is sometimes defined as extending only to pro- perty afloat upon the ocean, or employed in trade ; («) which makes it a maritime, or at most, a mercantile contract. But it has a wider use, and comprehends the risks of death, fire, drawing a blank in a lottery, and others not necessarily connected with trade ; and it is so described by the more modern writers. (6) (a) So Emerigon describes it from Le Guidon, and cites Styp- mannus, c. 7. n. 262, as extending' it to property transported. Wes- ket. tit. Ins. 2. confines it to sea-risks, and says, 'lie offers his de- finition as more adequate and complete than any he had met with, and comprehending those of all the esteemed authors who had treated of it.' Magens considers it as connected with trade. (6) Justice Lawrence says, ' the contract of insurance is applicable 2 N. R. 301. to protect men against uncertain events which may in anywise be of Lucena i'. disadvantage to them.' Craufurd. 1 2 Of the Contract of Insurance. Chap. I. Since, however, it is most frequently entered into as a mercan- tile contract, and the greater part of the principles of insurance apply to it as such, this form of the contract is always under- stood to be intended, when the contrary is not expressed. 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 himself 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 consid- eration 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. Gaming poli- Insurances are usually described to be of two kinds, namely, cies, and po- policies on interest and gamins; policies, in which latter the per- licies on inter- • i- , -iri ■ ^ x^-^i.i- gg^^ son msured is not requn-ed to have any mtcrest m the thmg insured, 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 Doug. 470. a die.' They are wagers made in the form of policies, which in other respects, differ, no less than other wagers, from the con- tract of insurance. A wagering policy does not seem pro- perly to belong to the subject of insurance, (b) since it is prohibit- ed by positive law in many countries, and is considered to be (J) Emerigon, c. 1. s. 1. says, a wager in the form of insurance, re- sembles it only in name. Christian, on the contrary, says, that ' insur- ance is in effect nothing more than a wager, for the underwriter, who insures at five per cent, receives five pounds to return one hundred, upon the contingency of a certain event, and it is precisely the same in its consequences, as if he had betted a wager of ninetj'-five pounds to five, that the ship arrives safe, or that a certain event does not happen.' 2 Bl. Com. 459. n. Where wagers in general are enforced as legal contracts, wagers on the arrival of a ship are sometimes declared to be unlawful, as against public policy ; lor a community, it is said, has a great interest in its commerce, and it is wrong to permit any one to have an inter- est that may make him desire that a ship should be wrecked, as the cupidity of men cannot be trusted in such a case. Emer. c. l.s. 1. Such Avagers have, however, been allowed in some parts of Italy. Roc. de Assec. n. 73; Poth. par Estrangin, No. 11. n. By the French Ordinance, a. 22. h. t. wagers in the form of insurance are prohibited; so by the regulations of Amsterdam, a. 13. 2 Mag. 132. No. 521 ; and those of Genoa, Casar. disc. 7 and 15 ; of Stockholm, ;u 2. s. 7. 2 Mag. 257. No. 1029 ; of Prussia, c. 6. a. 10. 2 Mag. 189. No. 780; ofMiddclburg, a. 2. 2 Mag. G8. No. 161. Wagering policies were held to be lawful, and were very much in use in England bcfi)re 1710, when tliey were jirobibitcd, by the Stat. 19. Cfo. II. cap. 37. 'because the pennilting of them bad been fl) Amory r. produclive oi'many j)oriiicious jjracticcs, whor('i>y great numbers of Gilman, 2 sbips with tboircargoos bad been fiauduloiitly lost; and bad encour- Masi llrj). 1. ;,g<'d proliil'itcd and clandcslino liados, to the diniinution of (be revc- f'l "")"o '' '""^'i '""' tlic groat delriuHMit of fair tradors.' In Massachusetts, wa- Johrn. Caj. gding |»olicics are considered vc)i,„ r- 1 • • I II- -1 fn\ V") ^ r>ur. J47. time and a variety 01 decisions have reduced it to a certainty.' (9) ^g\ Doug.270. 4 Of the Contract of Insurance. Chap. I. conclusively determine the instrument to be a wagering policy. And the law. is the same in the United States, as to the dis- tinction between a wager and an insurance. Whether it be a ■wager or not, depends on the whole instrument ; and though the assured have an interest in the subject and the risk, he may still (1) Juhel r. wager respecting them. (1) As, where a policy was, that a ship Church, 2 should save her passage to China that season, it was held to be 333"^* ^ wager, though the insured had some goods on board. (2) The (-2) Kent v. expressions mentioned in the above statute, or others equivalent Bird, Cowp. to them, are commonly used in wagering policies, yet, a great 583. fcee also variety of expressions might be used in this sort of policy, ac- r."\Vne^TT. cording to the subject to which it relates, and the event upon R. 305. ' which the wager depends. It often happens in insurances in- (3) Cousins r. tended to be on interest, that the assured has in fact no interest 3 Taunt Vi3 • ^-^'po^ed to the risks enumerated, yet these are not therefore "Williams V. ' wagering policies, and he is entitled to have his premium return- Smith, 2 ed. To make a policy a wager, it must appear to be such on Caines, 13. ^hg f^^e of it. (3) Accordingly, though the instrument contain phrases and pro- visions usually belonging to a wagering policy, still if it ap- pear on the whole to be a contract of indemnity, by which the claims of the assured are to be commensurate with the damage he may sustain, and if it can be executed as such, the provis- ions contained in it, that are against law or inconsistent with the general tenor of the instrument, will be controlled and made void. Where it was stipulated that, in case of loss, no proof of interest should be required, and that there should be no return of premium made, yet the court decided that those stipulations were void, and there should be proof of interest, and return of (4) Hemmen- premium, as in policies of the usual form. (4) But where it was •way, r. Eaton, agreed in a policy that a total loss should be paid if the ship did 108 See a No "^^ rcturn, and that no partial loss should bo paid, and no benefit Clendinin'<^^ of salvage claimed, and no proof of interest, except tlie policy, al. r. Church, recjuired ; it was held to be a wager on the return of the ship, for 3Caines,i4l ; ^}^p contract provided that in such case the whole sum insured kin^on ^ Park' should be paid, and by the other parts of the policy, as well as 402. this, it appeared plainly that it Avas not intended by the parties to be a contract of indemnity, under which the sum to be paid by the irisui-er, was to be measured by the damage sustained by the (5) Jiihel V. assured. (5) Church, 2 If the policy appear on the face of it not to be intended by 333"^* ^^^^ parties as a coritract of indemnity, and if it appear that the event insured against would not, were it to happen, cause any loss to the assured ; or if it might cause a loss to liini, and yet the sum to be paid l)y the insurer is not to be govcrued by such loss, or bear any j)roportion I0 il, such a policy is a wager. CoflndrCom. 'JMio l-'roiicii codc jiroscrihcs that ihe conliMct of insurance h. t. a. M3. shall 1)0 made in writing, liearing date on the day when it is sub- s(i-il)od, oxprossiiig wlic llior made before or after noon, and that it .'-liall (oiiiiiiii other particulars specified, and that no blank S|)acc sli.ill I)o lob ill tlio iiistrunioiit. ■Whether in- Indro:!! Ib'ilaiii ;tiid the United States, tlio law does not di- •urance mnst j.p,.,^|y .,,,,1 p.jsiiivc! v iircscribc tlic form of this contract, or the be in wriluig. j i j i ^ Sect. 3. An Agreement for Insurance. 6 mode in which it is to be executed. It has been held in Eng- land by Judges Eyre, Ashurst and Wilson, sitting as commission- ers in chancery, that an insurance not in writing would be void (i) Morgan r. as an evasion of the stamp duty. (1) And the English statutes re- Mather, 2 quiring the assured in certain cases to be named in the policy, .g?' og^Qg^' imply that the contract is in writing. (2) Mr. Justice Tilghman of u\. c. 44. 28 Pennsylvania expressed a doubt, whether a valid insurance could Geo.III. c. 56. be made otherwise than in Avriting;(3) and the contract is uni- ^^^|;^'^y'^, '* versally understood and spoken of, as being written. 4gg^ ' ' Insurance is most frequently made by an incorporated com- pany ; 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.' (4) To make a contract of (4) Head and j^^/(P*^^ insurance binding upon such a company, therefore, it must be Amory v. Z^^— executed in pursuance of its charter. ^^°^- ^"^v^2* ^ 2Cranch,167. /2 ^. construing according to the intention, applies to other instruments (10) E'er Mrir- as well as j)olicics. 'There are many cases on the construction *'?^"\^-/-;^ of bonds, where the letter of the condition has been departed Cooke i'. (ira- ^^^^i ^^^ earry into elTect the int(>nlion of (he parties.XlO) That bam. policies of insurance are governed by the same laws of con- Sect. 10. Usage affects the construction of the Policy. 1$ struction, as other written contracts, has been many times de- cided, either directly or in effect.(l) (l) Per Kent, The meaning of the words and phrases in policies as well as J-Goixt;. other instruments, must in general be ascertained by going out Ca7 341° of the instrument. Where the assured undertook that his vessel Marsh. Ins. should have a sea-letter on board ; to ascertain what the parties 304 ; Per meant, or must be supposed to have meant by a sea-letter, it was |b'^'"F*?°' ^' necessary to resort to the public statutes and treaties, or, if this fjaiiet i document was not defined, and its form prescribed in these, the Johns. 439 ; construction of the stipulation was to be determined by the com- and Marshall, mon usage and understanding among men of business.(2) ^^ 'g^^g^ ^^^^ Parties have been allowed to prove that words have a mean- ins. Co. 2 ing in policies different from that in which they are commonly Cranch, 419. used. Where a policy provided that no other than a total loss ^^^ ^^^^ ?^°" should be paid on roots, and a loss which was not total happened Co, Condy's on a quantity of sarsaparilla, the court was of opinion that it Marsh. 345. should be paid, notwithstanding it came literally within the ex- pi ?^^^^V'* ception, it being shown that the provision was introduced in re- ^aLlJohns. ference to trade, principally from Connecticut to the West In- 192. S. C. in dies, in beets and other garden roots, which were green and per- Err. 2 Johns, ishable, whereas the sarsaparilla being a dry, hard root, is less ^P^'^^j**, ^^^ liable to decay from its internal qualities, than merchandize in 351. ~ general, and had never been considered, in practice, as one of (2) sieght v. the articles excepted in the policy.(3)(rt) Rhineiander, A f- J ,u \ ,1. . ^u 1 % 1 Johns. 192. A question arose under the agreement, that the underwriter gj^ p^^i. should not be liable for a partial loss on coi-n, whether rice was (3) Coit & al. comprehended in that term, and, Sir James Mansfield said, that j-CoI. lus.Co. no one reading the policy would be apprised that rice was in- ''o^ns. 385. tended, yet ' if a clear usage to the contrary were shown,' rice might be considered as comprehended in the word corn in poli- cies of insurance.(4) (4) Scott ». Insurance being made ' from London to any port in the Baltic,'' S°^*^ «V^°' ^ the vessel sailed for Revel in the Gulf of Finland, a distinct sea from the Baltic, among geographers, but as it was comprehend- ed in the Baltic in commercial language, the court gave this ex- tent to the term in the policy.(5) And where a policy was ' at (5) Uhde v. and from Amelia Island,' and the vessel loaded at Tigre Island, ^yalters, 3 it being customary for vessels nominally bound to and from ^^^' Amelia Island, to discharge and load there, the court held that (a) The memorandum in this policy was, that ' roots and all other articles perishable in their ozvn nature,'' should be free from average unless general, and it would not seem to be a forced construction to qualify the expression, rootshy what follows, and restrain it to such roots only as are perishable in their own nature. And without resort- ing to this support, the case seems to go very far towards allowing the parties to show that their contract is different from what it evi- dently appears to be on the face of it. The court was prevented probably from resorting to the subsequent words, out of respect to one of its former decisions, viz. Barker v. Ludlow, 2. Johns. Cas. 289, in which it is said that the ' subsequent words are not applicable to the articles previously enumerated, nor can they repel the impli- cation arising from the enumeration of them.' 16 Of the Contract of Insurance. Chap. I. (1) Moxonr. Atkins, 3 Camp. 200. (2) Cockran t'. Retbere;, 3 Esp. 121." ('3) Speyert!. N. York Ins. Co. 3 Johns. 88. (4) Constable f. Xoble, 2 Taunt 403. (5) De Lon- puemere r. N. York V. In. Co. 10 Johns. 120. (6)S. C. id. 126. (7) Cockey r. Atkinson, 3 B. & A. 4G0. Usat^e of thfi trade implied- ly referred to in the con- tract. (fi) Noble & r1. r. Kenno- ■way, Uoug. fy\3. CO) Per Lord jMansfield in Mason v. fikurray, I'ark, 11^1 taking a cargo on board at Tigre Island, and sailing from ihence, satisfied the terms of the policy,(l) 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 obvious meaning of the policy was controlled by usage, in a case Avherc the shipper was to allow something for demur- rage, unless the cargo should be discharged in 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.(2) Goods being insured to Bordeaux, with an agreement not to abandon if the ship should be ' turned away,' the vessel was forbidden by the French government to enter the Garonne; as it appeared that, by the common usage and understanding, the tuniing away contemplated by the parties was a turning away by blockade, the court did not consider the ship to be turned away within the meaning of the policy.(3) Goods insured at and from Lyme, were put on board of the vessel at Bridport harbour, a member of the port of Lyme, about nine miles distant from that place. The court said, if the assur- ed 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.(4) In the case of a policy ' from New-York to the port of Sisal,' there being no port belonging to Sisal in the proper sense of the word, as it has no harbour or haven where ships may lie in safe- ty, but they lie off in an open road-stead, while discharging, and loading, the court gave a construction according to the fact, and considered the voyage in the policy, to be a voyage to Sisal, as .such a voyage is ordinarily performed, and must have been un- derstood by the parties. (5) And where the |>olicy was ' from the last po7-l of lading,' and the vessel completed her lading ofT Angostura which has properly no port or harbour, j'^et the court decided that it should be considered the ' last port of lading' within the terms of the policy. (6) So an insurance of a vessel for four months from St. Michael's to nuy port or ports^ is held to be equivalent to an insurance to any place or places^ and the sail- ing to a place that had no port, and where vessels are discharged in an open road-stead, was held to be within the policy. (7) An underwriter is supposed to be acquainted with the usages of the trade which he insures.(O) Every man who contracts under a usage, docs it as if the point of usage was inserted in the contract in (enns.(9) It was the uniform and well known prac- tice of the British lOast India C'ompany, to reserve in the char- terparty 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 intermediate voyage in the policy, yet, because the voyage was dccribed to be an India voyage, it was held, tli.'it tlu' underwriter should be presumed to know what was in- cident to such a voyage, and that the construction of the con- Sect. 10. Usage affects the construction of the Policy. 17 tract should be the same as if liberty had been expressly re- served in the policy to make such intermediate voyagc.(l) (l) Salvador A vessel was insured either ' with or without letter of 'j,' "^TO,"' 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 EUenborough said, ' it may be material to as- certain 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.'(2) (-) 6 I^ast, Goods insured 'till they were safely landed at Leghorn,' ^^'^^J,^^ ^'' 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, and permission could be had to trans- port them to the city. Marshall, C. J. giving the opinion of the court, says, ' whatever might be the effect, if the establishment of the Lazaretto, and the laws of quarantine, had been of so recent date, as not to have been in the contemplation of the parties to the contract, this cause may well be decided upon the usage found in this case, a usage of ancient date and general notoriety. Vvhen the parties stipulated that the adventure should continue till the goods v/ere 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 contem- plated in the policy. It is the landing which terminates the risk. 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.'(3) (3) Grade r. ' In all matters of trade,' says Justice Buller, ' usage is a sacred ^^^- ^^^^- ^°- thing,(4) and in policies of insurance in particular, a great lati- (a\ 'i^ev^mzxi tude of construction as to usage, has been admitted ;' and he v. Cazaiet, even says, that usage not only explains, but also controls the Park, 630. policy.(5) It is a well established principle, however, that usage (5) Lone; v. cannot control and set aside, what appears by the policy to be gog^*^' ^'^^' the plain intention of the parties. Where goods were insured ' till landed,' it was proposed to show that this expression meant till the ship was moored twcnty:four hours in safety, but Lord Xenyon would not permit it, because it was inconsistent with the meaning of the policy, which was too clearly expressed to ad- mit of any such cxplanation.(6) And the Supreme Court of (6) Parkinson Massachusetts held that ' the usage of no class of citizens could '"• Collier, be sustainf^d in opposition to the priaciples of law ;' the qucs- ' tion being whether a policy should receive a construction con- formable to the uniform usage in Boston, where it was effcct- ed.(7) And where it was proposed to introduce the slip^ for the (7) Homer r. purpose of showing what kind of policy the parties intended to Uorr, lOMass. make, and that it was different from that Vv'hich was actually ^^P" ~^' 18 The writtm^ controls the printed part of the Policy. Chap. I. made, Lord Mansfield would not permit it, for the contract itself was a conclusive proof of the intention of the parties ; and though a usage should be proved that the slip was to be consid- ered as a part of the contract, it could not avail to control or (1) Pawson V. get aside the policy.(l) And Mr. Justice Kent said, ' I know of no Barnevelt, ^.^jg better established, than that parol evidence shall not be ad- (2) New York mitted to disannul, or substantially vary, or extend, a written Ins. Co. V. instrument.'(2) Thomas, 3 p^ usage, to be binding upon a party, must be definite, gen- eral, uniform, and well known. ' The true test of a usage,' says the Supreme Court of New York, ' is its having existed a sufficient length of time to have become generally known.'(3) 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.'(4) In a case of insurance from Liverpool to Jamaica, the ship put into the Isle of Man ; it appearing that ships bound on this voyage sometimes put in there, but not usually^ it was held not to be a usage. (5) 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 way for many years, it constituted a usage. And Lord Mansfield said, ' it is no matter if the usage has only been for a year.'(6) Johns. Cas. 1. See also Mumford v. Hallett, 1 Johns. 439; Cheriot r. Barker, 2 Johns. 351 ; Hogan V. Del. Ins. Co. 1 Condy''s Mcirsh. 345. n. ; Vander- voort 3. ' ^o return to his native country, and is in pursuit of his native (5) The En- character, he is deemed already to have resumed it ;(7) provid- draught, 1 ed he has been engaged in a trade completely lawful in his na- ?heE.nMcn, ^ivC<^h^»-^^^^^'(8)^ 1 Rob. 17 ; The Freder- ick,5 Rob. 9 ; , . — The Ann, 1 Dod.221; The Vriendschap, 4 Rob. 16G ; Sel:3 Rob. CHAPTER III. 12. C^). ^^n"": LNSURABLE INTEREST, gmie, 5 Kob. 98 ; The In- ^!^"mC^ a?''' Section 1. JPliat interest is sufficient. 12 ; Ihe St. •-' Lawrence, 1 ^'■r\'\T^v ^^ '"^ P'^^cntial to every contract of insurance, that the assured cesandCarso^ should havc an interest at risk. If he have no interest, or if 1 Gal.fJKi; ' his ititcrcst be not at risk, he can be lial)lc to no loss, and ac- The Indian cordiiiglv thcrc is nothing against which the insurer can agree Chief, 3 Rob. , . i t u- 21 • The Ann ^" indemnify him. Green, 1 Cai. It is not rccjuisite, however, that the thing to which the insur- 274. nnce relates, or the interest of the assured, should be such as to l^Iwronrl^'l '^^^'^ ^^''^'''^ ■'^ l)roperly called a value, or price, or be capable of c;a7'^4(;7!' being assigned. One may insure the life or liberty of a free- man, though he cannot be said to havc any parlicular pecuniary value, nor has the assured any interest in his life or liberty wlii( h he can assign. The French Ordinance permits a person interested in the liberty of a mariner or passenger upon a voy- Sect. 1. What Interest is snjicictit. 27 age, to insure him against capture.(l) And it permits the rcla- (i) h. t. a. 9. lives of a person ransomed from slavery among the Barbary corsairs, and also the person who has paid his ransom, to insure his safe return home.(2) The Ordinance plainly recognises an (2) a. ii. i insurable interest in these cases. Emer^ 203, c. A person being insured against ihc risk of being drafted to ^' "*' serve in the militia, no doubt M'as suggested that one liable to be so drafted had an insurable interest in that event.(3) /on j)uffeli v. But insurance is a contract for pecuniary indemnity; and Wilson, i consequently, though neither the thing concerning which the Camp. 401, contract is made, nor the interest of the assured, must neccssa- o^r^!^^^l ^/a rily have any specific worth, that can be computed in money, or exchanged, yet the peril or event insured against must be such, that its happening might bring upon the insured a pecu- niary loss. It is suflicient 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 Avould pay him, should he live, yet there is some probability, more or less remote, that he would. (4) (4^ See Mr. It is a general rule that, in order to have an insurable interest Justice Law- in any subject, a person must be liable to a direct and immediate fence's opiu- loss by its damage or destruction ; it is not enough in general, ^^ v. Crau- that he is liable to damage indirectly and incidentally, in consc- furd, 2 N. R. quence of the damage sustained by another. 301, as to ia- Policies are frequently made in reference to a future interest. !!:"f„,! "'if,' , f . -. .^ ''. . lie resiEfenerauy. It IS every day s practice to insure goods beiore they are (5) Rhind v. bought,'(o) yet if one insures them on his own account, the pro- Wilkinson, 2 perty must pass to him before a loss happens, otherwise he can ^^^^^- ^^'^• recover nothing under the policy. Goods ordered by Messrs. Horton and Cummings of Philadelphia, were shipped in Eng- land, and consigned to the agents of the shippers in Philadel- phia, with orders to deliver them to Messrs. Horton and Cum- mings, on the condition of their being first paid for. Horton /g-v Warderr and Cummings insured the goods, which were lost on the voyage. Horton, 4 It was decided that they could not recover any thing for the ^'n- 5-9. loss, for they had no interest in the eoods, the property in ^eeTheAuro- u- 1, * X .1- 1 .1 • • 1 ^ • "^ 1 ra, 4Rob. Which was to pass to them, only on their previously paying the oig. The So- price.(6) But in the case of a purchase on credit, though the sephine, 4 vender has the right of stopping the goods in transitu, upon the ^°^- '^' ^""^ consignee's becoming insolvent, and thus defeating the purchase, j^^j^ 099^' this right docs not prevent the consignee from having an insur- (7) Lucenar. able interest.(7) Craufurd, 3 It is plain that the interest of the assured ought to continue ^; R.%'^9'^ and to be subsisting at the time of the loss, in order to give him («') Canoll & any claim against his underwriters for indeninity.(8) It has ai. v. Bost. been held, however, that the sale and conveyance in fee of a ^^^- I^^s- Co. house insured, which the purchaser at the same time mortgaged 515,^^^* ^^' back to the vender, did not divest the assured of his interest (9) Stetson r. under the policy.(9) Mass. Mut. Any act by which the property is forfeited, will take away li^'l^'^°' ^ the insurable interest of the owner, as effectually as a sale. By 330.^' ^^" 28 Insurable Interest. Chap. III. (1) Laws of U. S. V. 4 c. 195. [xci.] (2) Fontaine r. Phoen. Ins. Co. 1 Johns. 293. (3) United States r. Grundy, 3 Cranch, 337. (4) Lockyer v. Offley, 1 T. R. 260. (5) Lucena r. Craufurci, 2 N. R. 31 y. See also V. Sands, 10 Mod. 70, ■where posses- sion by cap- tors four years ■without con- denintition is hclfl not (o rhaiiL'''; Ihe properly, (G) Robin- son''!) Col, Mar. 32. n. an act of Congress passed in March 1809, the importation of goods from Great Britain, or its dependencies, was prohibited, and it Avas provided that if any articles, the importation of which was prohibited by that act, should be put on board of any ves- sel, with intention to import the same into the United States, such vessel should be forieited.(l) After the act went into ope- ration, a part of a cargo of molasses was taken on board of the schooner Phoenix, at Martinique, then in possession of the Brit- ish, with the intention of importing it into the United States, when the vessel was driven ashore and lost. Under a policy upon the vessel, it was objected, that the owners had lost their insurable interest by her being forfeited to the United States. Yates, J. giving the opinion of the court, said, ' the act affords but one remedy, and that is the forfeiture of the vessel, so that the seizure is not necessary to change the property ; the owner loses his right in it imxmediately after the commission of the act producing the forfeiture.'(2) But if an act be done by which the vessel, or its value, is forfeited, the owner does not lose his in- surable interest in the vessel, until it is seized for the forfeiture, since the government may claim the value of the vessel, instead of the vessel itself.(3) It has been held in England, that ' if a vessel is seized projusta cmisd, the property is immediately vest- ed in the crown.'(o) By which it seems to be implied, that the owner docs not lose his interest until the seizure is made. Mr. Justice Willes, giving the opinion of the court, says, ' the actual property is not altered till after the seizure.'(4) In regard to the 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 condemned in a court proceed- ing according to the law of nations, on rules binding, not only on subjects of the country where the court is held, but on for- eigners who arc not so.'(5) it has l:»een a practice of the French government since 1793, to grant commissions to its consuls in foreign countries to hold pi-i/.e courts.(G) It has been held in England and the United States, that these courts arc not legally constituted, and that their proceedings have no validity. A question has been there- ujion made, whether the title to a ship, ac(juircd by a condem- nation and sale, under a decree of one of these tribunals, gave to the purchaser an insurable interest. A Dutch vessel was condemned at Bci-gen, in Norway, by the French consul there, and ])urchased under that decree hy a Danish suliject, who sold her to the assured. A loss happening, his interest was dis- putcfl. I^ord Kenj^on said to the jur^', that 'the sentence of a (n) I'ipon V. Tope, 1 Camp. 434. See also Wilkins r. Dospard, f) T. I{. 1 12, wlicro Thomas &: n\.v. Withers per Gould .1. and llenncl V. IVrry, per Lord Matisfiold, are cited to the same point; and the U. S, V. The Anlhony ^^anf^^n, :J Cranch, :55G. n. S. C. 7 Peters' Adrn. Hep. 452, per Winchcsler J. an elaborate case. Sect. 2. The legality of the hUerest. 29 French court, in a country out of the jurisdiction of France, had been wisely held not to change the property ; but when it had been acquiesced in, in that country, it might make a difFer- ence.'(l) It does not appear that the Danish government acqui- (i) Smith r. esced in the decrees of this court, otherwise than by not in- Burridge, 4 terfering to stop its proceedings. This is a decree of acquies- '^' ~^* cence yielded in every country where such a court is held. Section 2. Tlie legality of the Interest. In certain cases the law does not permit insurance, though the interest may be in itself sufficient. The English laws pro- hibit insurance upon marriages, births, and christenings ;(2) the (2) 6 Geo. I. price of public stocks ;(3) and the slave trade. (4) I'he codes ^;^^^- of other European states prohibit insurance on certain subjects. i^\q g ^4* * Such prohibitions have not been found necessary in the United (4) 47 Geo. States. But the courts of no country can lend their aid to en- HI. c. 36. force the execution of a contract, which involves a violation of The interest the laws that those courts were constituted to administer. It is ^^^^ ^^ \e^2}. a universal principle, that if it be the design of the policy to protect property implicated in an illegal trade, or applied to an illegal use, or which it is not lawful for the assured to hold, the insurance is void. The owner of property so held or em- ployed, has no legal insurable interest in it. And upon the same principle, though a person have an interest in property, or an event, which the law will recognise, and employ his interest ^ in a way that the law will justify, still if an insurance of his in- terest be contrary to the spirit, policy, and general principles of the laws, he will cease to have a legal insurable interest. A war suspends commercial intercourse with the subjects of the hostile country, and renders it unlawful to buy of them, or sell to them, or contract Avith them ; the goods, and ships, and any other subjects of insurance, embarked in such intercourse, or destined to it, or to be derived from it, become aflected by p[oyed L^™' the prohibition. Property or interests so employed, or so situ- trade with the ated, cannot lawfully be protected by insurance. This incapa- public enemy, city of the subject, is different from the disability of an alien enemy to be insured, though it depends upon the same principle, namely, the unlawfulness of commercial intercourse with the enemy; one being the personal disability of an alien enemy, the other the effect upon property, or an interest, of being em- ployed in contravention of law, or involved in a prohibited in- tercourse. When, however. Lord Mansfield and other English judges favoured insurance on behalf of public enemies, they could not but extend the indulgence to trade carried on Avith them. Accord- ingly, in a case of a policy on goods bought in Holland after the commencement of war, Mr, Justice Duller 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 30 Insurable Interest. Chap. III. (1) Bell V. purchased of the enemy.(l) Mr. Justice Heath concurred, but ^'p°o' - ^* ^^^' Justice Rooke was inclined to dissent. Lord Mansfield (2) Gisfr. said,(2) that though trade with the enemy is prohibited by the Mason, 1 T. maritime law, he knew of but two cases to that eflect at com- R. 84. mon law, seeming to intimate a doubt whether it was in fact prohibited at common law. Numerous decisions had been made in the admiralty, and in the House of Lords, that trade with the (3) Cases enem}^ was unlawful.(3) Insurance on such a trade would ac- onl'^V^ ^°^* cordingly have been void. This point was considered particu- thecaseofthe ^^^ly by Sir William Scott in 1799, in the case of goods im- Hoop. ported from Holland by Englishmen, while that country Avas at war with England, and he held that the goods were subject (4) The to seizure and forfeiture.(4) And soon afterwards Lord Kenyon Hoop, 1 Rob. jjfid the other judges of the King's Bench, acquiesced in this alsothe^Odin opi'^io"? ^nd held that an insurance of goods so imported v.'as 1 Rob. 248. ' void.(5) The unlawfulness of trade with the enemy has been a (5) Potts V. subject of frequent consideration in the courts of the United 548^' ^ "^ ^' ^'^^'^^S' ^^'* Justice Story, says, ' I lay it down as a fundamental proposition, that strictly speaking, in war, all intercourse between the subjects and citizens of the belligerent countries is illegal, unless sanctioned by the authority of the government, or in the (6) The Julia, cxcrcise of the rights of humanity.'(6) 8 Craach, The prohibition of intercourse consequent upon a state of ^"^- war is so general and complete, that it has been held to extend Property in ^^ ^ citizen's property remaining in the hostile country at the enemy's coun- , , . r i /-,\ ^ tt- i i try at the brcakmg out 01 the war.(7) ' His property cannot be removed breaking out with safety from the enemy's country, unless under the sanction of war. of jjjg own government, because the law would never deem that (7) Cases a reasonable mode of conveying property, which involved in it solVc.^if" a trade with the public enemy.'(8) the case of An American citizen had purchased goods in England before the Hoop. the war, and deposited them on Indian Island, belonging to the (^) Z^^*!./'^' British, and near the boundary of the United States, and after 545 ' ^ ■ the breaking out of the war, a vessel Avas sent from Boston to fetch the goods. Both vessel and cargo Avere forfeited, and consequently the owners of neither could have protected their (9) The Ra- interest by insurance.(9) pid, 8 Cranch, i^j^j there arc not Avanling authorities to shoAV that citizens the Alexan-*'* having property abroad at the breaking out of a Avar, may have der,8 Cranch, it brought home, Avithout thereby ex})osing it to forfeiture, and 169' Avherc the bringing home of the projicrty is laAvful the proprietor may insure it. The ship Frances sailed from Crcenock in Scot- land, on the 19th of July 1812, being the day after the decla- ration of war by the United States against Great Britain, and was captured ])y an American ])rivateer. Claims Averc put in for dinrrriit parts of the cargo by sundry American citizens, and the only (|uostion made by the court, Avas, Avhethcr they (10) The Avcri; actually and honn fide owners of the jiropcrt3^(lO) Frances, 8 In another case a ship sailed from Liverpool to the United Cranch, 3J5. States, ' a few days after the declaration of Avar Avas knoAvn in Great Britain,' and Avas captured on her voyage by a private Sect. 2. The legality of the Interest. 31 armed American vessel. Part of the cargo was claimed by M'Kean and Woodland, American citizens, and their claim was allowed, the only question suggested by the court, being, whe- ther the property had vested in them when the goods were purchased by their agent in England before the declaration of war.(l) Sir William Scott held that goods ordered before the (i)8Cranch, war, might be imported from the enemy country after the decla- 3l7,TheMer- ration of hostilities, if there had been no opportunity of coun- "mack, termanding the order.(2) (2) The Juff- It appears then that a declaration of war does not necessarily, ""P^ S^!^\' 1 i\ 1- • • /- 1 -1 1 11 J. nna, 5 nob. and without distmction, hx a hostile character upon all property, |4^_ g^g ^^^^ at that time in the country of the enemy. But the rules in re- Saltus r. Unit. spect to the time within which property so situated may be im- I"^. Co. 15 ported, and the manner in which the importation must be con- ° "^' ducted, or the circumstances which will justify it, do not seem to be very definitely and satisfactorily laid down. Where the property has been condemned, there have generally, if not in- variably, been some circumstances to give it a hostile charac- ter — there has been great delay, or some intermediate trade, or intercourse, or community of interest with the enemy, or such an opportunity for these as could not safely be indulged. It has been held that a party, whose property has been seiz- Goods ed by the enemy, or by persons with whom trade is interdicted, bought of the may lawfully take such goods as are given him in exchange, enemy or at a Trade with France and its dependencies being interdicted, a port^'from ne- ship was driven by stress of weather, into port St. Fran. Abbott, 11 some of the ports of which were hostile and others friendlv. Camp 535 ^^'^^ ^^^" ^^ ^" valid, it not appearing but that the voyage was (5) Miiiier n to a friendly port. (5) But in the case of a policy on a voyage Thompson, 2 from Boston to the port of discharge in Europe, ' no exception W vht ^^^ ' ^^ ^^ taken on account of ports interdicted by the laws of the Welbie Jere- United States,' some of the European ports being so interdicted, my's Index, and Others not, and the vessel sailed for a French port, which 1819, p. 74. -was among those interdicted, it was decided that the assured (6) Russell V. could not cover his interest, and that the policy was void. (6) Degrand, 15 Sir AV. Scott says, ' there must be an act of trading to the ass. Rep. enemy country, as Avell as an intention. No case has been pro- duced in Vv'hich the mere intention to trade to an enemy's coun- try has enured to condemnation."" And though the voyage was towards a colony supposed by the party to belong to the enemy, but which had been captured by his own nation before the ar- rival of the ship, it was held not to be a trading to the enemy (7)The Abby, country.(7) ' Where the country is known to be hostile,' says 5 Rob. 251. the same judge, ' a commencement of a voyage towards that coun- try may be a sufficient act of illegality, but where the voyage is undertaken w^ithout that knowledge, the subsequent event of (8)Thc Abby, hostility will have no such eflect.'(8) The circumstance that the 5 Rob. 254. goods destined to the enemy are to go flrst to a neutrjil port, will not make the adventure lawful. During a war between Great Britain and ilolland, it was not permitted to a Britisji merchant to send goods to ICmbdcn, then a neutral ]iort, with the view of (9)ThcJongc sending them forward, on hi.'; czcn account^ to a Dutch port. (9) I'icter, 4 Rob. Though thc troops of the country to which the assured be- '^^' longs, have ])ossession of an enemy's port, it is not lawful to make a voyage ihilher without the sanction of his government, and insurance on ship or goods for such a voyage is inellcct- (10) Johnston „.,ii,(|o) i}„(^ where n country is in ])ossession of thc troops of lioug. 254. 'he enemy, but continues to be under the administration of its (Il)ll:ii,'<- own government, he irdiabitants have been considered as ncu- flornr. liv.U, trals in some cascsi(ll) In general, however, ' though ncquisi- (1^) Th!rt*y ^' ^'""^ made during war are not considered as permanent until con- llogshcads of firmed by treaty, yd to every commercial and belligerent pur- Hut;ari'.Hoylc, pose thry are considered as part of the domain of the conqueror, 9 Cr. 191. ^^y JQjij, J^ jj^. ,.cmins thc possession and government of them. '(12) Sect. 2. The legalihj of the Interest. 33 Yet in the case of goods shipped for Messina, a friendly port, but consigned to the subject of a neutral nation resident at Leghorn, at that time occupied by the enemy, the trade was held to be lawful and the insurance valid.(l) (0 Bromley A ship is held to have the character of the nation under the \ ^^^'^^^'r^^" flag and pass of which she sails ;(2) and consequently is not in- (-^-j The Vrow surablc, if she sails under the flag and pass of the enemy. But Elizabeth, 5 the flaa; does not determine the national character of the car- ^}°^-^ ' '^^^■ /„\ Vreede bchol- g°*w) 1 T • r tys, 5 Rob. 5. If property assumes a hostile character by a declaration oi n. war, after the policy is effected, this does not necessarily defeat (3) 5 Rob. 5. the insurance, though an alien enemy has a joint interest in the property. Rotch being domicilled in England, was insured there upon his interest in some fishing vessels fitted out in a French port, the other joint owner of the same vessels being a French- man. The vessels were detained in the French ports by an em- bargo laid after the policy was made, which was followed by a declaration of war. The policy was held to be valid, and a loss by the embargo was recovered after the declaration of war.(4) But the interest which a person resident in a neutral (4) Roich r. country has in a house of trade established in the country of ^^^^i ^ ^•^^' the enemy, has been considered to have the national character of the hostile country.(5) (5) The If property is seized provisionally in contemplation of hostili- Friendschaft, lies, and war is afterwards declared, the declaration will have ^^ ' "' a retroactive operation in respect to the property so seized, Avhich will be liable to confiscation in the same manner as if the declaration had preceded the seizure.(6) (6) The Bo- As the personal disability of an alien enemy to make con- S,*^^^ I""^*' t iS- • *^ 1 111- • -1 r Rob.248;The tracts, and bnng actions, may be removed by his privilege oi Herstelder l holding property, or by a safe-conduct, or a license, so a license Rob. 113; or privilege granted by sufficient authority, will, in like manner, Lucena v. make it lawful in a subject to carry on trade with the public ,p^'^^ "Y^' 2 enemy, and any property employed, or trade conducted, within g. & p. 75, the privilege, will not be divested of any of the rights which 2 N. R. 269. usually belong to it, and it may accordingly be insured. Whatever man or body of men in a community, has the pow- er of declaring and carrying on war, has, as incident to such ]:)ower, the right to qualify the declaration, and exempt any per- sons 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 hostilities, 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 cases that come within the rules of civilized v/arfare. Licenses and privileges to individuals, or to specific property or kinds of trade, are only an extension of the principles upon which sue » rules are found- ed, with this distinction, that the rules of warfare may be the dictates of humanity, whereas licenses and exemptions in respect to trade, generally proceed upon considerations of interest. 6 34 Insurable Interest. Chap. III. (1) Vanliarth- als V. Halhed, 1 East, 487 ; Vaiidyck v. Whitmore, 1 Kast, 475 ; •Shiffner v. Gordon, 12 East, 296 ; Schroeder v. V'aux, 15 East, 52. (2) The Anna Catharina, 4 Hob. 118. To divest a trade of its hostile character, the license under which it is conducted must be granted by a sufficient authority ;(l) the trade must be conducted by the persons in whose favour the license is granted,(ff) within the time for which it is in force,(6) and according to the terms and conditions of the license. (c) It has however been held that a license of trade with an enemy, or a license granted to an enemy to trade, ii the subject of a large and liberal construction.(fi) If a person not domicillcd in the enemy country, make a con- tract with the hostile government for privileges and the monopo- ly of a branch of trade, and send an agent into one of its colo- nies to prosecute business under the contract, the trade has a hostile character and accordingly cannot be insured. (2) As a license from the merchant''s own government will make a trade lawful, which would otherwise have a hostile character, so a license from the enemy will render trade illegal, which Avould otherwise be entitled to the protection of the law ; as in the case of a voyage from the United States to Portugal, 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 purpose (rt) Fayle v. Bourdillon, 3 Taunt. 546 ; Usparicha v. Noble, 13 East, 332 ; Feise v. Bell, 4 Taunt. 4 ; Morgan v. Asvvald, 3 Taunt. 554; Klingender v. Bond, 14 East, 484; Rawlinson v. Janson, 12 East, 223; The Beurse Van Konnigsberg, 2 Rob. 169; The Jonge Johannes, 4 Rob. 263 ; The Jonge Klassina, 5 Rob. 297 ; The Cousine Marianne, Edw. Adm. Rep. 346 ; Busk r. Bell, 16 East, 3 ; Barlow r. MMntosh, 12 East, 311. (i) Robinson v. Touray, 1 M. & S. 217 ; Feise x'. Waters, 2 Taunt. 248 ; Siffkin v. Allnutt, 1 M. & S. 39 ; Freeland v. Walker, 4 Taunt. 478 ; Leevin v. Cormac, 4 Taunt. 483 ; Williams v. Marshall, 1 Moore, 168; 2 Marsh. R. 92 ; 6 Taunt. 390; 7 Taunt. 468; Tul- lock V. Boyd, 1 Moore, 174 ; 7 Taunt. 471 ; The Goede Hoop, Edw. Adm. Rep. 327 ; The Carl, Edw. Adm. Rep. 339 ; The Johan Pietcr, Edw. Adm. Rep. 354 ; Groning v. Crockat, 3 Camp. 83. (c) I^e Cheininant v. Pearson, &, same v. Allnutt, 4 Taunt. 367 ; llagedorn v. Reid, 1 M. & S. 567 ; Hagedorn v . Bazett, 2 M. & S. 100; Hullman & al. v. Whitmore, 3 M. &; S. 337; Anthony v. Mo- linc, 5 Taunt. 711 ; lincker v. Ansley, 5 M. &, S. 25 ; Everth & al. V. Tnnno, 1 13. & A. 142; Butler v. AMnutt, 1 Stark, 222; The Cos- mopolite, 4 Hob. 8 ; The lloHhung, 2 Rob. 162 ; Tbc .Jonge Arend, 5 Rob. 14; The JullVow Catharina^5 Rob. 141 ; The Clio,l5 Rob. 67; The Gebroeders, Edw. Adm. Rep. 95; The Byheld, Edw. Adm. Rep. 190; The Catharina Maria, Edw. Adm. Rep. 337; The Wolfarth, Edw. Adm. Rep. 365 ; The Europa, Edw. Adm. Rep. 341 ; The Vrow Cornelia, Edw. Adm. Rep. 319 ; The .longe Frederick, Edw. Adm. Rep. ?}hl ; The Cornelia, Edw. Adm. Kep. 360. {(I) Dcfilis V. Parry, 3 B. k. P. 3; Robinson v. Touray, 1 M. & S. 217 ; Feise r. Waters, 2 Taunt. 248; Fayle & al. v. Bourdillon, 3 Taunt. 5 16 ; Flindt v. Scott, &, same v. Crockatt, 5 Taunt. 674 ; Us- paricha V. Nol>le, 13 East, 332; Feise v. Bell, 4 Taunt. 4; Mor - gaii-r. O.swal.l, 3 Taunt. 55 1; llagedorn r. Roid, 1 M. & S. 567; Kensington -c). Inglis, 8 Fpst, 273 ; Tlic.lntio, 2 Rob. 116; The Plan, ler's VV'enscb, 5 RoL>. 22; The Goedc lloup, Fdw. Adm. Rep. 32a. Sect. 2. The legality of the Interest. 35 of protecting the property IVom British capture, the voyage was adjudged to be rendered illegal by the use of the license ;(1) (l)TlieJulia, and would have been so, even though the license had been pro- ig^^'^'g^fg^i^g cured by the agent, without the owner's knowledge.(2) It was the Aurora, 8 held in Connecticut that such a license obtained through the Cranch, 203. minister of the neutral country, to whose territories the voyage J^^^^ Y\vhelt was intended, did not render the voyage illegal.(3) The Su- ^^'J_' prcme Court of the United States was, however, of opinion that (3) Bulideyr. ' the mere sailing under an enemy's license, constituted of itself Derby Fishing- an act of illcgality.'(4) An agrc'ement that a ship should have ^°- \^j'_'"" one of these licenses on board, was held in New York to be ^,^^ ^he Ari- illegal and void, and so was a policy, v.arranting the ship to adne, 2 have such a liccnse.(5) * _ See So ^^^' But a policy on one of these licenses valued at a certain sum, (^^.^jt"," u. g. was decided in Massachusetts to be a vaUd and legal contract.(6) jng. Co. 1 Te- And accordingly the same court held that the having such a lers' Rep. ^^ ----- - - • ' 410. parties had mcurred a penalty for possessmg the paper, still the ^^•^iquhoun i . 1 r. . • / 1 1 ^1 • r I v-yN N. Y. Firem. voyage was lelt untainted, and the insurance valid. (7) j^^^^ ^^^ ^. If the voyage be undertaken in violation of the law of na- Johns. 352. lions, or that of the place where the policy is made, the pro- (6) Perkms v. perty cannot be insured. A policy on a cargo imported from a ^^^{i^jjj^^g' foreign port, with which intercourse is prohibited by the law of j^^p^ o{^_ the place where the insurance is eiTccted is void.(8) If the trade (7) Hayward be illegal, it defeats the policy on the ship, as well as that on ',' ^^^'i^'' '" the cargo.(9) Ships or goods destined in contravention of the ^^q^' '^' monopoly of the British East India or South Sea Company, can- (g) The Unit- not be effectually insured in England, the privileges of these ed States v. companies being guarantied by law.(lO) And if any part of Jj^g'!^^^^"^ j the entire voyage or adventure, be in contravention of such mo- p^^ters' Rep. nopoly, no insurance will be valid, whether it be for the whole 98. voyage, or the part of it, which, distinct from the other, would (9) Gray r. have been lawful.(l 1) But Avhere the outward voyage is distinct ^vh^j^Q,^!; from the homeward, and some part of the trade on the outward Dig. h. t. No. voyage is in violation of a privilege granted by statute, still the 3- homeward vo^^age may be insured. A vessel, in her outward ^^^^ ^^™^^^\ voyage, was employed in a trade, by which the privileges o{ ^^ ^^ 21I; the East India Company were infringed upon, and afterwards Morck & ai. went to Canton and took a cargo for Europe, a part of which »^- -^^^b-^ ^• was purchased with the proceeds of the previous illegal voyage ; Jha'lm'^Vr this was held not to contaminate the interest, and the entire ad- BcH, 3 B. & venture, commencing at Canton, being legal, might well be in- P. 604 -, sured.(«)(12) _ Gilfi'B'-& If the voyage be in violation of an embargo, laid by the gov- ^ 234. ernment of the country to which the owner of the property be- (ii)\Vii?onr. longs,(6) or in violation of a law, prohibiting the exportation of Marryatt, 8 naval stores, the property cannot be insurcd.(c) In like manner ,'. ;. \; insurance was defeated by an evasion of the act of parliament ciir. Roy.Ex. Ass. Co. 4 (o) Bird V. Appleton, 8 T. R. 562. (6) Dalmada v. Mottenx, 'i^^mt. 856. Park. 357. (c) Parkin v. Dick, 2 Camp, 221. S. C. 11 East, 502. 36 Insurable Interest. Chap. III. (1) Ingham & requiring vessels to sail with convoy ;(1) and also by the for- 15 E ^^ mT'- ^'^^'^^''^ ^^ ^ bond given in pursuance of law, the condition of Wainhouse v! "^^'hich was, to employ the cargo in trade on the coast of Africa.(2) Cowie, 4 The English law requires, that, on the exportation of gunpow- Taunt. 178 ; der, a bond, conditioned to export it to the place proposed, shall ton^ 2 MarX' ^^ given by the ' merchant exporter.' The bond being given by Rep. 252. ' the manufacturer instead of the exporter, rendered a policy on (2) Gibson v. the gunpowder and other goods void in respect to the other Service, 5 goods, as well as the powder.(3) S. C. i. ' '^^^ English law prohibits the joint lending of money on bot- Marsh. Rep. tomry ; therefore persons so lending cannot in England insure H9. ^ their interest.(4) The laws of the United States do not permit Britten'^4^B^* ^or^ig^ers to have any interest in American registered vessels ;(5) 6 A. 184. ' they cannot therefore have any insurable in such vessels.(6) So (4) Everth v. in England, where the law requires that a register shall be taken «t^*v^^fip"' ^ ^^^ ^y ^^^ owner of the ship, it is held that where the assured (5) Laws of h^^ "*-'t, at the time of effecting insurance, taken out a register, U. S. V. 2. c. he had not a legal insurable interest, because he did not hold 146. [I.] s. 2. his interest in conformity to the law. (7) The English law also (6) Duncan- j-gquires that the recfistcr shall be recited in the bill of sale, but son V* > , . . APCl'ure, 4 ^ mere clerical mistake in reciting it, such as inserting ' 1 783' Dal. 308'. instead of ' 1782,' will not defeat the title of the vendee.(8) But (7) Marsh v. jj^ ^}^g United States the law requires no recital of the register EsV98"-''Yal- ^^ the bill of sale, nor any bill of sale ; the interest in a ship as lop ex parte, Well as in any other chattel, may be transferred by a sale l5Ves. 60; and delivery, without writing.(9) A register is necessary only Campbell r. ^^j. ^^^ purpose of entitling the ship to the privileges of an Ame- 'll6;'lIough-' I'ican registered vessel, not for that of giving a good title to a ton ex parte, purchaser ;( 10) and to prevent any person resident in a foreign 17 Ves. 253 ; country, except an American consul or a partner of an Ameri- Anderson^s ^^" house, from participating in the privileges alloAvcd to Ame- T. R. 709; rican ship-owners, a bond is given at the time of taking out a Rolleston & register, to return it for the purpose of having it cancelled on Xr' 'i '!'t^T^ ^'^^' transfer, to a foreigner, of any interest in the shi]i.(ll) 406. ' If a contract involves a contravention of the laws of a foreign (8) Rolleston State, it is not therefore void. A policy made in New York on &al.r. Smith, ijnens, nankeens, and cloths, from thence to .Jamaica, the impor- fG^Wendover tation of which from New York was prohibited by the laws in V. Hoi^eboom, force at Jamaica, was held to be valid. Lansing, C. J. said, 7 Johns. 30fi. ' thjs was a voyagc undertaken expressly for the purpose of 00) Hatch r. injcit trade in a foreign country. A policy on such a voyage 5 Ma-s. Rep. against our own laws would be void, but we are not bound to .63; I'rait i: dcclarc it void, when merely contravening the positive rcgula- al. f. I'hain. tions of a foreign state.'(a) Iris. Co. 1 (Jpon this Tu-inciple Lord Mansfield, with the concurrence of Rrownc, 267, I . ' • i i i /• • i i i i ta cited Whar- thr other judges, held tliat a lorcigner who sold goods at IJun- lori's Dig. 320. \^\i-]i to an iMiglishinaii, knowing that the Englishman intended to h. t. No. 32. smugtil<: them inio JMighiiul, nii<;'ht recover llie ])ri('c in a British ^ V 2'c"''l46 court. (/>) Some doubt seems, however, to be thrown upon this [i].".."7: (d) Gardiner v. Smitli, I .lolins. Cas. 141, there arc many decisions n[ioii lliis prii)rii)Ic. {!>) llohiian & al. v. Johnson, Covvp. 341. Sect. 2. The legality of the Interest. 37 opinion by a subsequent decision. Goods were exported from England upon giving a bond to employ them in trade on the coast of Africa, and the forfeiture of the bond was a breach of the law requiring it. An agreement was made to meet an Ame- rican vessel, on the coast of Africa, on board of which the goods were to be transhipped. This was held to be a violation of the law by the English vessel ; and as the owners of the American vessel participated in this violation of the English law, it ^yas held that neither the American vessel nor the cargo, after being transhipped, could be insured in England.(l) (l) Gibson & It is a general rule, however, that a person docs not neces- ^'Jj^^^^'g' ^ sarily forfeit the right of insuring his interest, in ship or goods, gg^'' Gibson" from the circumstance of their being employed in an interloping ^,. Service, l trade. It is said that one state does not take notice of the rcvc- Marshy Rep^ nut laws, or commercial regulations, or municipal laws, of another. }^^^^'^^' ^23. This rule seems to have arisen partly from the circumstance, (2) 6 Mass.' that some foreign countries, Spain and Portugal in particular. Rep. 114. have imposed many commercial restrictions, which their own (3)^1 ^""qX subjects are in the habit of violating, and it would be an exces- oe^Grot."^' sive severity in a government to require of its subjects an exact jjb. 3. c. l. observance of the laws of a foreign country, which are disre- s. 5 ; Vattel, garded by the people of that country. Another reason of this jog ^io'4.'^' °' rule probably is, that nations, though at peace, have still con- gee'aiso Rob- sidered themselves to be rivals and competitors in affairs of inson's Col. trade. Each government, therefore, considers itself^ at liberty ^^^'^^^ ^^^'^ (4) p. 78. (5) The Er another nation. This seems to give the othe'r nation the right ^""^"sj^^t, 1 to counteract such regulations, by making others, or by per- ° TheSa- mitting its own citizens to contravene and evade what are, in j^h Christina, some sense, intended for hostile measures. l Rob. 241 -, The law of nations is that of every country, and therefore an The Twee 111 1 ^ • • \ \- r ^i * 1 Juiirowcn, 4 mterest held, or property employed, m violation ot tliat law, j^^,^ g^g -, cannot be a subject of insurance.(2) The law of nations makes The Richl it the duty of a nation professing to be neutral, to abstain from mond, 5 Rob. assisting either belligerent to carry on a war, by furnishing sol- .1 '^j^^ j^r^ diers, ships of war, arms, or warlike stores.(3) The trade thus lunus, 2 Rob. interdicted to neutrals is denominated contraband, but in deter- 108. minino; what particular articles of merchandize are contraband (?) '^^^^, ^J^^^ /'^T./ri.Tiii /.xr 11 1 .1 r tresellchait of war, Mr. Marshall says, (4) ' much depends on the power 01 Michael 4 the party, whether belligerent or neutral,' who is deciding the Rob. 94. question. A belligerent, possessing a powerful naval force, has (9)TheChar- an interest in making the list of contraband articles numerous. 275^' * Ship timber, going to a port of naval equipment,'(5) pitch and (lo) The tar,(6) sail cloth,(7) hemp, fit to be used in equipping ships,(8) Richmond, 5 sheathing copper,(9) a ship, intended to be sold for the purpose of ^°^- ^•^• being used as a privateer,(10) and also provisions of a kind com- jon , . - show that ui)on a policy ''on the prolits expected to arise on a cargo oi there: would niolasses,' belonging to the assured, who had a contract to supply havf' been a ^[||. ^.j^y vvjih s))ruce beer, in the manufactin-e of which the ^'^"'' ■ cargo was intended lo be used; Lord Mansfield, and the other judges, were of opinion tiiat this was a sufiicient interest, the ground of I lie opinion being, that as the assured was owner of (4) Grant r. ^|,,. (.;,,.j,o, and had a contract to supply the army, if the cargo l'urk"4(l2' .'irrivcd, ' his jjiofits were pretty certain."('l) Sect. 9. Interest of Captors and Prize Agents. 47 Insurance being effected ' on profits valued at 400/.' on a voy- age in the slave trade, the court held that to give the assured an interest, it must appear that a profit would have been realized. The case was decided against the assured, because he ' did not show that if the slaves had all got to a market, any profit would have been produced.'(l) (i) Hodgson The same principal was adhered to in an insurance on the v. Glover, 6 profits of a cargo of flax, from Riga to Hull, in which Lord El- l^ast, 316. lenborough considered the insurable interest to depend on the fact, that there would have been a profit, had the cargo ar- rived.(2) (2) Eyre r. But in New York, under a policy on profits, where three ^^°t^*^2i8^ eighths of the goods were lost, the court held it to be a loss of ' that proportion of the profits, under the policy, without inquii'ing whether there would have been any profits had the goods ar- rived.(3) (3) Loomis In another case this subiect was examined by Kent, J. in 'i'f^l^'^''n 1 • • 1 1-1 ^ k r. • xi- i. 2 Johns. Cas. whose opmion the other judges concurred. Alter saynig that 3g_ profits are insurable in England, and that freight had been held to be insurable in New York, and remarking that there is a great similarity in freight, profits, and commissions, the first be- ing profits to arise out of the employment of the ship, the two last on the goods, he proceeds ; ' These insurances on freight, profits, commissions, &c. are said to be founded on the course and interests of trade, and are greatly conducive to its prospe- rity. The doctrine, however, that runs through all the cases, is, that the assured must have an interest in the subject matter, from which the profits are to proceed, in order to prevent the policy from being considered a wager. Policies on profits or freight, if the assured be owner of the subject, which is to create them, are not wagers, but policies on a real and substantial inte- rest.'(4) No suggestion was made that a loss under the policy (4) Abbott v. would depend on the fact that a profit would have been realized, Sebor, 3 had the goods arrived. The only question as to interest, was, l?}^^^' '* whether the assured owned the goods. In a subsequent case, Livingston, J. giving the opinion of the same court, said, ' It does not follow that a profit will be made if the cargo arrive, yet its loss would give a right to recover on such a policy.'(5) (5) Mumford In Connecticut the court gave an opinion that, ' an interest in '• Hailett, i the vessel and cargo, gives an interest in the profits. Such an ^^^^^' '*2^- interest in the expected profits is an insurable interest.' The insurers made the objection, that 'it did not appear, that if the vessel had arrived safely at her port of delivery, any profits would have been produced.' The court docs not appear to have regarded this objection.(6) (6) Fosdickr. Norwich M. Ins. Co. 3 Section 9. Interest of Captors and Prize Agents. ' Captors and prize agents have an insurable interest in the captured property, where they are interested in its condemna- ^^^ J*'^*^* ^' *' tion.(7) In 1782, the British land and naval forces, in conjunc- "" 48 Insurable Interest. Chap. III. Omoacase, tion, captured some vessels and their cargoes at Omoa, in India, and one of those ships, the St. Domingo, being insured on ac- count of the officers and crews of the capturing vessels, it was made a question whether they had an insurable interest. The case turned partly on the statute granting a share of prize money to the commanders and crews of capturing vessels. The court held, that if they were entitled to any share of the prize money, under that statute, there could be no doubt of their having an insurable interest in the prize. 'But,' said Lord Mansfield, * supposing that doubtful ; as far back as Queen Ann's time down to the present, wherever a capture has been made by a king's ship or a privateer, the crown has always given a grant of it after condemnation. Is then the contingency of the ship's com- ing safe such an interest as the captor may insure? Insurance is a contract of indemnity ; some interest is necessary, but not any particular form of interest ; it does not depend on a vested formal interest. The question is, whether this contingency is such a benefit to the assured, as Avill make a loss to him if the ship does not arrive ? An agent of prizes may insure the arrival of a ship, which will produce him a profit; for though he has not the possession of the property, he has such an interest in the ship coming home, as that he may insure. Here the possession is in the assured, and a certain expectation of receiving the pro- perty captured, from the crown, which gives him an interest in the arrival. It is not a vested interest, but such an expectation as never was defeated.' And the assured were held to have an in- (i)LeCrasr. surablc intercst.(l) ^lughesjPark, ^ ^^^^ ^^,^^ decided in favour of the assured in the time of Lord Kenyon, upon an interest very similar to that of the assur- ed in the Omoa case. The ship Westcapelle and her cargo had been captured as Dutch, and were claimed in behalf of Theo- dore Lyman and other American owners, to whom the property was restored. The captors, having made insurance, refused to pay the premium, alleging a want of interest. Lord Kenyon said, ' the assured had possession of the property, and from that possession certain rights and duties resulted. If it was a legal capture, the captors were entitled ; if the capture was improperly made, they were liable to be called to account in the court of admiralty, where they might be amerced in damages and costs. It was irnpr)rlant to them to take care that there should be some- thing forthcoming to answer the amount of those damages. On this ground, therefore, I am clearly of ojiinion that the assured had an insurable interest.' The other judges gave substantially f2) Tlofhrn V. tiip same opinion.(2) y^^ •'" • ■ JJiit Lord l^ldon says, ' If the Omoa case was decided upon the expectation of a grant from tlie crown, 1 never can give my as- (3) Liicr-na r. sonl to siirli a doctrine. '(iJ) And Lord l*'.IleiilK):'oiigh. giving the Oaijfurd, 2 opinion of the court in a similar rase, said, that if on the arrival N. K. isii.i. j,c ^]^f. ships, 'iho crown had made a grant to the captors, it might have bcrn of the whol(\ or of a part, and a very incon- siderable part only, 'i'o what extent could they insure? Not to the whole value, because the grant n)ight only have been of Sect. 9. Interest of Captors and Prize Agents. 49 part ; nor of any given part, because it must have been uncer- tain what part, if any, would have been granted.'(l) (0 Houth ?•. The interest of captors and prize agents, and the subject of '^[^""lyg"' ^^ insurable interest in general, were very elaborately and learn- B^t \^^. g' ^ edly discussed in the different courts of England, in some cases 13 East, 274. arising under policies upon Dutch ships and cargoes, seized un- der an act of parliament(2) in contemplation of the declaration (2) 3 B. & P. of war against Holland in 1795. The king appointed commis- 13. n. sioners, who were authorized to take such ships and cargoes, as might be detained or brought into Great Britain under that act, into their possession, to be managed and disposed of according to such instructions as they should receive. Some ships being seized and carried into St. Helena, the commissioners effected insurance upon them in their own names, for whom it might con- cern. A loss occurred, and the insurers resisted payment on the ground that neither the commissioners, nor the king, nor the captors, nor any others in whose behalf the commissioners had authority to insure, had an insurable interest. The first argu- ments were made in 1798 in the court of King's Bench, where it was adjudged that the commissioners themselves had an in- surable interest, as trustees. (3) The question was argued in the (3) Craufurd Exchequer Chamber three times, in 1800, 1801, and 1802, be- '•• Hunter, 8 fore the twelve judges, who Avere divided in opinion ; but a ma- • '' jority concurring with the King's Bench, the former judgment Avas affirmed.(4) It was then carried to the House of Lords, (4) Lucena v. where the judges of the different courts gave their opinions Craufurd, 3 severally at great length. Seven of them were of opinion that ^- ^ ^' '^' the commissioners, as such, had an insurable interest in the property to its full value. They say this case is not like insur- ances on profits or commissions, since the assured profess to be interested only as commissioners, and not personally, and there- fore the rules as to the certainty of profits or commissions, to make them insurable, do not apply. They Avere consignees, agents, or trustees for others, and it is to be understood that the insurance was made for the benefit of those, for Avhom they Avere to manage the property, that is, in this case, for the king. They say the intention of parliament Avas to give the commis- sioners the same control of this property that an OAvncr has, and therefore to give them a poAver to insure. They Avere ac- cordingly of opinion that the commissioners might allege an in- surable interest in themselves. As to the objection that the in- terest might have been granted aAvay by the croAvn before the ships arrived, and therefore Avas contingent, they made the same reply that Avas made by Lord Kenyon and the other judges of the King's Bench originally, namel}', that a vested indefeasible interest is not necessary to constitute an insurable interest, for a consignee of goods purchased by him on credit has only a con- tingent interest, since the vender has a right to stop them in transitu, in case of the consignee's insolvency ; yet such a con- signee unquestionably has an insurable interest. 7 50 Insurable Interest. Chap. III. Thompson B. concurred in this opinion generally. But Judges Chambre and Lawrence thought that the commissioners had not an insurable interest until the ships had arrived in England. Their opinion on this point turns wholly upon the construction of the commission. Lord Eldon agreed with them on this point. Considering it as an expectation of an interest, he says, ' 1 have in vain endeavoured to iind a fit definition of that which is be- tween a certainty and an expectation ; nor am 1 able to point out what is an interest, unless it be a right in the propertj^, or a right derivable out of some contract about the property. 1 can- not accede to the doctrine that unascertained profits, which may or m.ay not be made, may be insured.' Speaking of the Omoa case, where the captors had not an interest in the prizes under any act of parliament, but only an expectation of a grant, he said, ' the captors not only had the possession coupled with the liability to pay costs and charges, if they had taken possession improperly ; there was also a liability to render back property Avhich should turn out to be neutral, and a liability as agents to act for the king as their principal, and he should be disposed to say that the king had an insurable interest, as the person who had the right of possession.' He was accordingly of opinion that the commissioners in this case, though they had not them- selves an insurable interest, and could not allege their own in- terest, might yet avail themselves of the policy, as agents for the king. Lord Ellenborough and Lord Erskine concurred in this opinion, and the decision of the court was in conformity with (1) Liicenar. it.(l) v'^^R "^»^9~ ^^ ^ subsequent case, a Spanish prize had been captured at Monte Video by the land and naval forces jointly. A Mr. Blacker was appointed by the naval and military commanders to act ' on behalf of all interested in the capture,' who gave orders io insure the prizes. Blacker had no authority from the king. The officers v.ere entitled to a share in the prizes under an act of parliament. But it was objected to their interest, that the crown might grant away the prizes before they were condemn- ed ; Lord Ellenborough said, that the right of stopping in Iransilii did not defeat the insurable interest of a consignee. ' The in- dcfeasibilily of the property is not therefore the criterion of an insurabl'^ interest. What is (he case of an executor? Probate (2) Stirling r. is necessary to complete his title, yet before probate he has a EaT^bTy •'^" ^'^'^ sufficient to enai)le him to insure.' He accordingly was of Camp. 225. ~ opinion thnt the captors had an insurable interest, and this was C'J) 1 GkI. the judgment of the co\n't.(2) .05U, '[ he Jo- \^^ insurable interest in jirizes can l)e accjuired only by a (4) 5 Rob. g''firit from the government. Mr. .lustice Story says, 'The sole 181, Thf! and exclusive right, as to all jirizes, rests in the government, Kiscbe ; and f,,,(j ,io individujd Can ac(juire any interest therein, unless under «ec out 1 /•. ^j^^jj. „^.^^^^ .jpj commission, and all captures, made without such fbjif, 'I2'i ; grant and commission, crunT to the use or the government. (3) and i:j Easf, Sir William Scott said the same ; ' no man has or can have any r^^'i^r^iV hiterfst 1)ut what he takes, as the mere gift of the crown ; be- \'-. I ..7. yond the interest of that gilt, he has nolhiu^.X'i) I Sect. 11. biter est in Freight, 51 Section 10. Tntetest bj the' Charterer of a ship. As far as a charterer of ^a" 'slup 's liJibrc to' ciatoage by its loss, he has an insurable interest. The owner of one lialf of a schooner hired the other half, with an agreement tKat in case of its being lost within the term of the charterpartj, the char- terer, Oliver, should pay Maj'berry, the other part-owner, the value of his moiety. He then insured the schooner to its fult value on his own account. The schooner being lost, the ques- tion of insurable interest Avas made. In giving the opinion of the court. Chief Justice Parsons said, ' by virtue of this contract, Oliver had a special property in Mayberry's moiety, which was at his risk, and he might indemnify himself ag^ainst loss by caus- ing himself to be insured.'(l) (l) Oliver r. According to Lord Ellenborough's instruction to the jury in ll'^^^^c ^ one case, Maybcrry might, in the preceding case, still have insur- l^2^^' * ^' ed his half of the schooner on his own account. Hobbs the owner of a ship had chartered her to Woodman, Avho covenant- ed that if the ship should be lost, he would pay Hobbs 3,600/. Hobbs insured the ship on his own account, and it was lost. It was objected that as Woodman was to pay for the ship in case of loss, Hobbs had no insurable interest. Lord Eilcnborough said, ' he was not bound to trust exclusively to the credit of Wood- man, but might likewise protect himself by insurance.'(2) If the (2) Hobbs r. agreement with Woodman exf.ended to the loss of the ship hy Hannain, 3 the perils insured against in Uie policy, this was plainly a double Ca.-np. 9::. insurance ; but under the form of policy used in England, this would raise no objection to the claim of the assured. An agreement by the charterer to insure the ship, has been held to give him an insurable interest, in the same manner 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 with- out a legal title to the property.'(3) (3) Bartlettfe al. V. Walter, 13 Mass. Rep. 567. Section J 1. Interest in FrciP-ht. The owner of a ship, navigated on his account, has an insur- able interest in the frei2:ht. In rea;ard to the conmicnceme-.t 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 when the owner, having goods ready to ship, or a contract v/ith ano- ther person for freight, has commenced the voyage, or incurred expenses and taken steps towards earning the freight. But if the ship is not ready to proceed on the voyage, and expenses have not been incurred towards earning the freight, as Avhere the ship is lost while careening, and before she is ready to take the cargo on board,(4) the interest in the freight has not commenced. (4) Tonire r. Mr. Justice Hosmcr says, ' Freight sometimes denotes the Watts, 2 Sir. compensation for the use .of a ship, and sometimes a compensa- ^-^^" tion for the transportation of merchandize. Wlicn the vessel is 52 Insurable Interest. Chap. III. hired/.so soon. 9a, iUi?' voyage. is.f^nfer^cT On, the right to freigl commences'. So soon ai the "snip breaks 'm-ound, the hire of th (1) Riley v. Hartford Ins. Co. 2 Connect. Rep. 373. (2) Thompson r. Taylor, 6 T. R. 478. See also Mac- kenzie r. Shedden, 2 Camp. 431. (3) Montgom- ery t'. Egging- ton, 3 T. R. 362. (4)rinrt V. Del. Ins. Co. Condy^s Marsh. 28 l.n, Wharton's Dig. 337. h. t. No. 186. (5) Riley v. Hartford Ins. Co. 2 Connect. Ilcp. 368. (6) Horn- castli' r. Sill- art, 7 Kasl, 400. (7)TraTolt V. Christie, 2 lirod. tc i3ing. 320. 5ht lip Drea-Ks 'gj-ounci, tne nire ot the ship is at ri^k. ard .cqn«tituj.es., a legal subject ot" insurance. If the freigh.t bp .dcri^^alJe fi'om tjia transportation of merchan- dize, the right commences when the goods are put on board ; or, at farthest, when a part have been received, and the rest are ready to be shippcd.'(l) Insurance being effected on the freight of a ship chartered to go to Teneriffe, and there take a cargo for the West Indies, and the ship being lost on the voyage to Teneriffe, before the cargo was taken on board under the charterparty, it was objected that the insurable interest had not commenced at the time of the loss. It was however held that the interest had commenced, and Lord Kenyon said, ' it now seems admitted that if the con- tract had its inception, if any thing were done under it by the assured, his right to freight commenced.'(2) It was again held in the same court, where the freight was valued at 1 500/. 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 moor- ings and lost, that the insurable interest in the zchole freight had accrued, and the assured was entitled to the whole sum insur- ed.(3) In a case upon a policy on freight ' from New York to Wil- mington, and thence to Barbadoes,' the assured had bought a cargo of staves, which were 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 commenc- ed, at the time of the vessel's sailing from New York.(4) ' The freight of goods laden or to be laden' being insured, a part of a cargo was taken on board at Gibraltar, and the ship was proceeding towards the Cape dc Vcrd Islands, with funds on board to purchase salt there lo make up the cargo, when she was lost. It was held that the insurable interest had commenc- ed only in respect to the goods shipped at Gibraltar. (5) An open policy was made on the freight of the ship Marquis of Lnnsdown, at and from Dominica to London, the owner of which had a chai-terparty for a full freight, outward and home- ward, or for doad freight, if a cru'go should iiot ])c supplied, and while the ship lay at Dominica ready to take on board the cargo, she was captured. Lord Ellenborough said, ' the exist- ence of the charterparty, giving an entirety to the conti-act of fr-eight, was decisive, the voyage having once commenced. '(G) In the case of insurance on freight and jiassage money, from India to Lurope, a contract for the freight of goods and the pas- sages of 40 invalids had been made, and the sliip had been alter- ed for the accommodation of I he passengers, and a greater part of the goods hnrl l)oen tnkcn on board, when the ship was lost; it wns held lh;il I he owner h.id an interest in the whole freight and p:i>s;ige money, at the lime of the loss. (7) The frrjirht of the ship CJheswirk, at and from any ports in J[;ivli to Liverpool, being insui-ed in a valued ])olicy, the ship Sect. 11. Interest in Fremht. 53 t)' was lost by the perils of the seas, when she had discharged a part of her outward cargo, and taken in bb bales of cotton of her homeward cargo, at Jaquemel, and was proceeding thence to Aux Caycs, to discharge the rest of her outward, and take in the rest of her homeward cargo. Upon these facts, Lord Ellen- borough said, ' In every action on such a policy, evidence is giv- en, 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 chartcrparty or other contract for freight, but goods were on board sufficient to purchase the remainder of the home- ward cargo, that were saved and afterwards bartered for goods, which would have completed the homeward cargo. It was de- cided that the assured should recover only the freight of the 55 bales of COtton.(l) (l) Forbes r. In a case precisely similar to the last, except that the owners Aspinwaii, is had a chartcrparty for supplying a full cargo, only half of which ^if^^^ ' had been actually taken in when the loss happened, the other Forbes r. half being ready to be put on board, it was decided that an in- Cowie, i surable interest in the whole freight had accrued, and the assur- Camp. 520. ed recovered the amount at which it was valued.(2) (2) Davidson The Supreme Court in New York has recognized the principle ^^&^s^^3^3.^ which governed the preceding case, namely, that the owner of ' ' ' the ship having a chartcrparty, by which a freight is secured, has an insurable interest as soon as he has done something under the chartcrparty, and is ready to proceed in the execution of it on his part. The owner of the ship Olive-Branch let her by chartcrparty for a voyage from Bourdeaux to New York, Buenos Ayres, and back to Europe, for the entire sum of 18,000 dollars. The ship had arrived at New York in the prosecution of the voyage, 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 chartcrparty gave an entirety to the contract of freight.'(3) (3) Livinsr- According to Lord EUenborough's instruction to the jury, it ^to" ';• Col. will make no difference whether the agreement to supply a cargo john^^49 or to pay freight, is in writing, or under seal, or only verbal. The freight of the ship .Jane had been insured at and from the Cape de Verd Islands to London. She had taken on board 150 bags of orchella weed, which was only a part of a cargo, at St. Nicholas, where she was wrecked. No contract to supply the rest of the cargo was proved. The judge said, ' if a contract had been proved for supplying the ship with a full cargo at a stipulated rate of freight, it would have appeared that, by the event which has happened, the assureds had been deprived of a profit which they must otherwise certainly have received, and they would have a right to call upon the underwriters for a full indemnity. Nor should I have considered it material whether the contract were or were not under seal, or whether it was written or merely verbal. For ought that appears, the person 54 Insurable Interest. Chap. IIL who was to supply the cargo might have refused to send on board another bag without subjecting himself to an action.' He was accordingly of opinion that an insurable interest in only the (1) Patrick r. 150 bags on board had accrued at the time of the loss.(l) Earns, 3 Insurance being made on the freight of the ship Etheta from Camp. 441. ]^ew York to Sisal, or some other port in the province of Yucatan ses V. Pratt. 4 and back, ' carried or not carried,' the ship, after taking in a part Camp. 297. of her cargo at Silam, 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 unfavourable 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, (2) De Lon- notwithstanding a full cargo was not on board.'(2) guemere v. By the preceding case it appears, that if the assured has done ThePhoen. something towards earnins; the freight, and there is nothing to Ins. Co. 10 » . . ^, ., R 5 . 1 • • , ° , Johns. 127 • prevent earning it except the perils insured against, his interest The same v. in the wholc freight has commenced. The judges distinguish The N. York ^}^jg (^^^gg from Forbes v. Aspinwall before cited, by the circum- lo'^Johns 201. stance that the part of the cargo, not on board, was procured and ready to be put on board. They say this is precisely the case of Montgomery v. Eggington cited above. Mr. Justice Kent said, in another case, that an ' inchoate right to freight' constitutes an (3) Davy v. insurable interest. (3) According to what was said by Mr. Jus- Haliett, 3 ticc Eyre, ' if the goods be so situated as to create a well ground- Caines 19. gj expectation of freight being realized, freight is insurable.'(4) Lon""! BfL' The same question as to the commencement of the insurable P. 636. interest occurs in respect to persons having an interest in the O) Mestaer v. freight, Other than the owners of the vessel ;(5) and it is to be V « e^^g' ^^ inquired besides what persons have such an interest. The char- Th '~ f t ^^^^^ ^'^^ agrees absolutely to pay a certain sum for the use of of persons ^^^^ ^liip during a certain time, or for a specified voyage, has an other than the insurable interest in the freight. He alone is interested in the owners, in earnings of the vessel for the time agreed upon, since he agrees '^'^'^ ■ to pay the stipulated amount, whether the vessel earns freight or not. The charterer of a ship from the port of London to Rus- sia and back, agreed that in case the discharging of the out- ward cargo, or the shipping of a return cargo, should not be permitted, he would pay the owner 2500/. on the return of the vessel to London. The court held that this agreement gave the (6) Puller r. charterer an insurable interest in the freight, to that amount.(G) Sianiforth, 11 The lisk insured against, was that of the Russian government's p'^m'^"!^' ^^^ idlowing the outward cargo to be discharged. The case Halliday 12 does not ihoi-eforc show that the chai'terer had an interest, that East, 494. lie might have insured against sea-risks; these still remained with the owner, and tliei'c seems to be no reason why he might not still protect his freight against these by a policy on his own (7) Sanson r. accouiit. The owner and ch:irterer had thei'cfore each of them iJall, 4 Dal. an insurable interest in the freight, in resj)ect to the risks to 4^,9; Mac- uiijch they were severnlly li;il)le. Rut if the charterer agrees Shffidcn 2 absolutely to pay freight, he has an insurable interest in it in Camp. 431. respect to all risks.(7) Sect. 12. Interest in Fishing Voyages. 55 If a person sells a ship, reserving the use of it for a certain (i) Riley i-. voyage or time, he seems to stand precisely in the place of a Deiafieid, 7 charterer, and to have a similar insurable interest.(l) ° ^^' ^^^' The freight of a part of a voyage may be insured. A ship The freight of sailed from St. Ubes for Gottenburg, but was to put into Ports- a part of a mouth for convoy. The freight was insured from St. Ubes to ^'oyage may 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 man- y^-. p^^.^, ^^^ ner. There is no case which intimates the contrary, except (3) Taylor v.' Murdock v. Potts,(2) which is inconsistent with all the other "Wilson, 15 cascs.'(3) 1-^^^ 324. If the owner of the ship advances money for w^agesor charges. Expenses in- he has an insurable interest in consequence 5(a) and the same curred on ac- holds true of the charterer.(4) Tvfjm^ , 1111 11 • 111 voyage may It has been held that the advance ot money by the charterer ^ive an inte- of the ship for the expenses of the vessel, constitutes no insurable rest in freight, interest in ship, cargo, or freight, nor, in respect to the risks of the voyage, in the money so advanced, unless the charterer is gall 4 Dal"' to lose the money advanced in case of the vessel's not earning 459/ freight, or in some other event. Bailey, J. said, ' if the charter- party had clearly expressed that the money advanced should be in part payment of freight, then the loss of the ship w^ould produce to the freighter a loss of the money advanced, and he would have an insurable interest.' But if he still might recover the money of the owners, notwithstanding the loss of the vessel, he was held not to have an insurable interest. (5) But if the freight (5) Mansfield when earned, was to be a fund out of Avhich the freighter was ^- '^f^'J^^c^j!,'* to be repaid, and he had a control over that fund for the pur- g^g ^^^'^ \yq'. pose, why had he not the same insurable interest in the freight, son v. Roy. that a mort2;ae:ee has, or that a creditor has in the life of his Ex. Ass. Co. debtor? 2 Camp. 626. Section 12. Interest in Fishing Voyages. In fishing voyages the insurable interest consists of the vessel, outfits, and fare, catckings, or stock. In whaling voyages the out- fits are supplied wholly by the ow^ners of the vessel. The men ship upon shares, or hiys, each one being entitled to a cer- tain proportion of the proceeds of the voyage. They accord- ingly have an insurable interest in the cargo as soon as it is on board. This interest is, however, rarely, if ever, insured by the men themselves, but sometimes is so by the assignees of the shares. The insurance is not that a cargo shall be obtained, which would in eflect be a guaranty that wages should be real- ized, but it is upon the cargo obtained, and is therefore similar to an insurance of goods purchased by a mariner, or received by him as wages. (a) Salvador v. Hopkins, 3 Burr. 1707 ; Bell v. Bell, 2 Camp. 475. Though Siffken v. Allnutt, 1 M. & S. 39, seems to be contrary ; but the facts do not appear distinctly. 56 Insurable Interest. Chap. III. In cod-fishing voyages, as they are conducted in the United States, the outtits consist of the great and the small general. The great general is supplied wholly by the owners, 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 consists mostly of the provisions and fuel. The insurable interest of the owners ac- cordingly consists of their interest in the vessel, the great general^ and their proportion of the fare, or stocky which is customarily one quarter, or, including the expense of curing the fish, three eighths.(a) 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 13. Interest in Reinsurance. Reinsurance is an illustration of the distinction between an insurable interest, and a property in the subject to which the insurance relates. An underwriter, by subscribing a policy, acquires no interest 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 indemnified against those perils. His interest, however, exists only in relation to the perils against which he has insured in the original policy. The English law forbids reinsurance, 'unless the insurer shall (1) 19 Geo. be insolvent, become bankrupt, or die;'(0 ^nd this statute is II. c. 37. construed to extend to reinsurance of foreigners ;(2) but it is al- ■ Fm1'^^° 2 lowed in France, and is frequent in the United States. T. K. 161.' Upon the same principle, on which an insurer has an interest that may be the subject of reinsurance, it has been held that the owners of a vessel who were answerable for any loss by the fault of boatmen employed in bringing the cargo from the shore to the vessel, might insure the goods against that risk. This liability gave them an insurable interest in the goods, in respect (3) Walker r. to that risk.(3) VlHilland, li.k. A. 171. Section 14. Interest in Lives. One who is directly lial)lc to a loss by the death of any per- son, has an insurable interest in the life of such person. A crcdi- ( xinii (i) 'I'lio owners iisiiaHy supply tlio men with more or less of the ill ^rnrral, find ;\s tlicy dopend wholly upon the proceeds of the \oyn'j;v. lor payment, it is understood, i)y some persons conversant in this iMisiiicss, Hint Ihcy liavo an insnrai)le interest to Hie amount of the siriall a^vamil supplied l»y thorn, thougii the ])rice is in fact le- pally and ahsohilely dno from the men. ]!iit it admits of some doubt uiicther they can insure except in behalf of tlic men. Chap. IV. Description of the Assured. S7 tor has an insurable interest in the life of his debtor, as far as he is liable to any loss by his death. ' The policy,' says Lord Mansiield, ' may be considered a collateral securiiy for the dcbt,'(l) and therefore depends upon the same principle as a (i) Stackpool policy upon the interest of a mortgagee. Lord Kenyon instruct- ^; f'imond, ed the jury, in case of a debt due from Lord Newhaven to An- jyia'rsh^??! derson and Mitchell, and an agreement between Anderson and Mitchell, on a settlement of accounts, that the debt should ' re- main to the account of Mitchell only,'' that Anderson still had an insurable interest in the life of the debtor.(2) But it does not (2) Anderson appear what interest Anderson could have. '• Edie, This interest, like any other, must be a legal one; a note Park^elo^' given for money won at play, gives no insurable interest in the life of the maker, the debt being illegal, and the note void.(3) (3) Dwyer r. Mr. Justice Bullcr intimated to the jury, that the holder of the i^die, Marsh, note of an inflmt had an insurable interest in his life, for he Tl^' ^^^^1 might not avoid the note.(4) In regard to this, as well as other (4)"ib. subjects of insurance, an interest contingent in itself, and that might be defeated, or might 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 pa- rentis, was held to have an insurable interest in his life;'- and Parker, C. J. in giving the opinion of the court, said, ' a policy ef- t fected by a child upon the life of a father, who depended on some fund, terminable by his death, to support the child, Avould never be questioned.'(5) (5) Lord r. Dall,12Mass. Rep. 115. CHxlPTER IV DESCRIPTION OF THE ASSURED. Ix many policies the assured is so described that any per- son may be comprehended, and avail himself of the contract, by proving his interest, and showing that the policy v/as intend- ed for him. Diflcrent forms of expression are adopted for this purpose.^ In England, insurance appears to be made most fre- quently in the name of the broker, who causes himself to be in- sured on an interest, ' as well in his own name as in the name and names of all persons wdiatsoever to whom the same may in any way appertain.' The same form is often used in the Uiu'ted States, and also a shorter one of like import, in which the party ef- fecting the policy, is insured for ' himself and whom it may con- cern.' At Marseilles the policy was formerly expressed to be made for ' such ]-)C}-son as should be thereafter named.' At Ham- burgh the losses under a policy were made payable to ' the 8 38 Description of the Assured. Chap. I V. (1) Ord. of Hanib. lit. 1. s. 4. 2 Mag. 211. (2) 1 Emcr. 47. c. 2. s. 4. (3) Pray r. Edie, 1 T. R. 'J14. (4)c. 11.3.4. (5) Pray v. Edie, 1 T. R. t313. (6) 25 Geo. III. c. 44 ; I B.&P. 352.n. (7) Pray v. Edie, 1 T. R. 313. (8) "Wilton v. Reaston, Park, 20. (9) 28 Geo. III. c. 56. (10) De Vig- nierr. Swan- son, 1 B. ii P. 343. n. ; Wolff r. Horncastle, 1 B. & P. 31G. (11) Lucena t . Craufurd, 3 IJ. k. V. 75. (12) Russell r.N.K.M.Ins. Co. 4 Mass. Rep. 82. bcarer.'(l) Other general forms of expression of similar im- port, have been used at different places for the same purpose. By these forms the assured might be concealed from the knowledge of the underwriter, and they were equivalent to the practice of subscribing policies in blank, as was formerly done at Marseilies,(2) and also in England. (3) The practice of in- suring for whom it might concern was adopted, says Emeri- gon,(4) for the purpose of concealing the name of the party in- terested, and keeping his commercial enterprises secret. On this account the insurers in England complained, that ' policies were so loose that an underwriter had no opportunity of know- ing the nature of the thing insured, or who the persons were for whom he insured.'(5) Accordingly a statute was made in 1785, prescribing the m.anner in which the assured should be described in the policy.(6) 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 under- writer took advantage of it to evade his contract, on the ground that the agent, in whose name the insurance had been efi'ccted, was not described as such in the policy. In that case, Lord Mansfield intimated a doubt cf the expediency of the law. (7) Another policy Avas evaded under the same law, because it was made for W. Wilton, and ' the other owners ;' they not being named.(8) Another statute was then made to remedy the mis- chiefs of the first, which required only the name of the person interested, or that of his agent, to be insertcd.(9) 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 in- terested.(lO) - 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 Aery much within the power of the underwriters to remedy, without the aid of an act of parliament ; if they wished to kirow what and for whom the}' insured, they might have refused to sign a policy in which the assured and the subject were not sufficiently described. Such a restriction as the insurers seemed to desire, would be inconvenient in its oj)cration, as abridgments of the liberty of contracting arc apt to be, in general. AYhcre an agent holds goods, of which he docs not know the actual owner, as was the case with the connnissioncrs of tlic Dutch ]^rizcs,(l 1) and Avhere one agent consigns goods lo another without advising the con- signee that he holds them as agcnt;(12) the consignee may be able (o give the underwriters information of all the facts mate- rial to the risk, yet if such a law were in force as that which ihc insurers desii'cd before the statute 25 Geo. III. c. 44, he could not insure. A ])olicy in the name of a pai-ticuhir yiorson with the clause, \f()r vhom il may conrrrn^'' or other ef|uivatent words, will lie en- forced to protect the interest of any person in Avhosc behalf il was intended, and by whose authoril^^ it was effected.(fl) (a) Tim nssiirrd may l)o nn.'u'rraMp ovor for llic amount recover- ed ou a policy made iu hia own name and for his own benefit ; as io Chap. IV. Description of the Assured. 59 it must appear that the policy was made in behalf of a per- son, for, otherwise, though he has an interest corresponding to that described in the policy, it will not be covered. Where the as- sured, supposing 3000 dollars to be shipped on his account in the West Indies, insured that sum in his own name, for whom it might concern, and it turned out that only the sum of 1152 dollars was shipped on his account, but another ])erson, Bodwy, having money on board the vessel, wished to recover his loss under the same policy with the consent, no doubt, of the person in whose name it was made ; Mr. Justice Washington was against his claim, on the ground that he neither procured the insurance himself, nor authorized any other person to do it.(l) (1) Bod-vvy r. A policy was effected on the schooner Chance, at and from L'n. In«. Co. Trinidad to New York, by Stcinback, for account of himself, Jj°^;;'^4t3.'n7 Milibran, Murray, or whomevei- ehe it might concern. The schooner w^as at the island of Trinidad, at the time mentioned in the policy, and cleared out there for New York, but actually sailed for Havana. She was owned by Milibran, who was at Trinidad at the time, and had nominally consigned the schooner and cargo to Steinback, at ^.cw York, at the time of actually sailing for Havana. Steinback had funds in the hands of Mili- bran, and being informed of the purchase of the schooner, sup- posed it might have been made with his funds and on his ac- count. But Milibran had never given him any information to this effect, nor had he requested Steinback to effect insurance on account of any person. On the contrary, he had written to Havana for insurance on the voyage thither. In this case, therefore, Milibran, the owner, was named in the policy as one of the assured ; the policy contained, besides, the general clause, for whom it might concern., and the vessel w^as at the place sup- posed in the policy, so that the risk at Trinidad might have at- tached within the terms of the contract; yet as it appeared that Steinback had no interest him.self, and was not the agent of the owner to effect insurance, and that the policy was effected through mistake, the court held that the policy never attached, and decided that the premium should be returned. Three of the judges were of this opinion, but Kent J. dissented, on the ground that ' to permit Steinback novv^ to deny that he was agent, in opposition to his OAvn act and contract, w^ould be opening a door to infinite fraud and abuse, and would be destructive to fair dealing, and to commercial confidence, and that the insurers ran a risk on the vessel ; for if she had been lost at Trinidad, and before any orders to effect insurance for Havana, Milibran could have sued the underwriters, and they would have been left without defence. '(2) He docs not say whether his opinion (o) Steinback would have been the same if Milibran's name had not been in- v- Rhinelan- der, 3 Johns. Ca= 269. the case of a creditor's insurinj^ the life of his debtor to whom he charged the premium, where the executor of the debtor paid the debt ; Lord Ellenborough instructed the jury that the creditor's exe- cutor should pay over to the executor of the debtor, the amount re- covered under the policy. Holland v. Smith, 6 Esp. II, 60 Descriplion of the Assured. Chap. IV. serted in the policy. It therefore does not appear whether he was of opinion that one who effects a poUcy for himself or ' whom it may concern,' is precluded from showing that he is not interested himself, and was not authorized to effect the policy as agent. His reasoning, however, seems to lead to the adoption of this principle, Avhich would be attended with some inconve- nience in preventing a return of premium. It has not, however, been adjudged that the general descrii> tion of ' whom it may concern^'' or other equivalent Avords, will preclude the party effecting the policy from claiming a return of premium for want of interest, though property may be at risk answering to the description in the policy. There are strong objections to establishing such a principle, since it would be a great discouragement to insuring in this form, which is very con- venient in practice. ' What is an insurable interest is a ques- , tion of some difficulty. Hence the advantage of a general form in naming the assured, and extending the effects of the insur- ance as far as the contract may be found to have been author- ized by mercantile usages ; thus comprising the cases of con- signees, factors, trustees, and agents, and persons having a quali- (1) Lee r. fied interest in the property.'(l) Mass.F. &;M. jj^ i]^q case of a policy upon a cargo in the name of Lav/- Mass ^Rep Tcncc, 'and every other person to whom,' &c. it appeared ^0«, per that Lawrence owned one half of the cargo, the other half of Sewall, J. which belonged to Thomas T. Gault. They were not general partners in trade. The vessel was captured and cari-ied into Montserrat, where Lawrence's half was condemned, and that of Gault acquitted. The Avhole cargo was worth 10,000 dollars, the amount insured being 5000 dollars. If therefore the policy was to be considered as made for both of them, indemnity for only half of the loss could be recovered; but if for Lawrence alone, as he contended that it was, he would be entitled to a full indemnity. The court thought themselves at liberty to go out of tlie policy to ascertain on whose account it was made. Three of the judges were of opinion, fi-om the facts proved, that the policy was intended by Lawrence to protect the joint interest, and that Gault could compel him to carry to their joint credit what should be recovered in the suit. Kent, C. J. and Thompson, J. dissented, on the ground that the insurance rather appeared from the policy itself to be made for Lawrence only, (2) Lawrence and that the underwriters so considered it.(2) r. Scbor, 2 ]^ ^^^ earlier case in the same court, on a policy effected by aines, 20 . f^Qwreiice and Whitnej^, ' as well in theii- own names, as for and in the name and names of all and every ol her person or ]:)ersons,' on the cargo of the schooner Nymjih, of which they owned a third pari, the question Avas made, whether the insurance was on one third of the cargo or the whole. They claimed the be- nefit of the policy for themselves, to cover their part of the car- go, and Mr. Justice lladcliff said, 'it appears that the insurance (3) Lawrence ^^'"^ '" '"'^''^ ^'' inimdid.'i?,) r. Van Home, Under a policy desci-ibed to be ' for G. l'\ Sinias and others, ICaincs, 27C. of Ilichmond, 'as well in his own name,' &c. it was decided Chap. IV. Description of the Jjssured. 61 that persons residing out of Ilichmond might be included, and also that belligerents might be so, though persons residing at Richmond at the time were neutrals. (1) (i) Hodgson From these cases it seems that a policy containing this general r. Mar. ins. description may enure to the bcnctlt of the person effecting it, Co.sCranch, or to that of any other person for whom he intends it, and (.2) Rouih r. who has requested him to effect it, or adopts it when made. Thompson, 13 The adoption of the policy by the party for whom it was in- ^^^^'~^'^', tended before, and in many cases, at least, if not in all, even Qfiy^.rs°oT 2 after a loss, is equivalent to his previous order for insurance.(2) m. k S. 485 -, And Emerigon is of opinion(3) that where the owner of pro- Steinback r. pcrtv, in whose behalf insurance has been effected without his ^iji'ielander, r J ' . 1 r 1 . 1 . •' Johns. Cas. request, is niiormed 01 the msurance, and returns no answer, ooi^p^ji^g^t, this is a sufficient ratification of the contract, to give the insur- C.J. ers a claim for the premium. i^l^' V ^^V If a policy does not contain this general clause, no others than those named as the assured, or on whose account it is expressed if there is no to be made, can avail themselves of it. J. F. Dumas, ' by his general clause agent Watkins, caused himself to be insured in the sum of 5000 l^'' polj^y will ■P,, 1 ' f • 1 r 1 1 • • V) r 1 • I , be applied dollars on the ircight oi the brigantme Kose,' wiiicli was tlie oj^jy to ihe in- joint property of Dumas and J. W. Foussatt ; but it docs not ap- terest of the pear that they were general partners. The freight was lost, P^^'^y named. and the assured claimed to recover the whole loss under this policy. But it was decided that he could recover only to the amount of his own interest.(4) (4) Dumas r. The same point had been previously decided in a case in Jones, 4 Mass. which John Boonen Graves was insured in the sum of ■■ 10,000 '^' dollars on property on board of the ship Northern Liberties, as property might appear,' without any other description of the assured. The cargo belonged equally to Graves and Barne- well, v.'ho were not general partners. It appeared that Graves intended to cover Barnewcll's interest as v.ell as his OAvn ; but Chief Justice Marshall, giving the opinion of the court, said, ' if such was to be the effect of the instrument, the contract ought to have been so expressed as to show that the interest of some other person than Graves was secured. The Avords as property may appear^ seem to restrict the general terms of the policy to the interest of the person named in it.X^) In giving the opinion (5) Graves v, of the court in Massachusetts on the same point, Mr. Justice Bos. Mar. Ins. Sewall said, ' no case can, I believe, be imagined, where the ^["g" ^^^'^ ' maxim cccprc^sio xinms est exclusio alterius, applies more empha- tically than in naming the assured in a policy of insurance.'(6) (6) Pearson r. And where the policy was expressed to be ' for account of Mun- Lord, 6 Mass. go Macka}^' Kent, J. said, it ' was equivalent to saying that the /tn^l-^.^ Vi property was his.'(7) . _ ^ Rhineirnder'' Where John Murray and Sons owned two thirds of a cargo, 3 Johns. Caa. and had advanced money on tlie other third, to be repaid out of ■^'^'^* the proceeds, v» hich the owner of that third had directed to be remitted to London, and ordered his correspondent there to pass to the credit of Murray and Sons, a policy was effected by Murray and Sons, expressed to be for ' themselves,' without any general description to intimate that others were concerned, but 62 Description of the Assured. Chap. IV. intended by them to apply to the whole cargo ; it was adjudged that only their own interest was insured.(a) Whether part- Chief Justice Kent, hoAvever, says, ' there can be no doubt perty'may°be ^^^^ ^ partner has such interest in the entirety of the cargo as insured m the to enable him separately to insure it, and that an averment that name of one he had an interest in the property to the amount of the insur- partner. ance, is supported by proof of a partnership interest to that (1) Lawrence amount.'(l) But he thought if the partnership was confined to V. Sebor, 2 a particular adventure, one partner could not insure the whole Se^e'^also " P^'opei'^y in his own name. This distinction is difficult of appli- Holmes r. cation, since every partnership is more or less limited, and it Unit. Ins. would uot bc easy to say how general it must be, to give each C°* "sio^"^' 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 of individual interest, or the averment of the inte- (2) 2 Cranch, rest of a Company be supported by a special contract relating "^40. in its terms to one individual. '(2) The policy "'^ question has arisen in respect to the application of policies canbe applied eflected by persons, having an insurable interest in the subject, only to the in- but of a description different from that which they intended to terest for insure at the time of makins; the policy, v/here the policy would intended. attach, if Considered as applicable to one interest, but Avould fail in regard to the other. Amos Toppan of Newburyjjort, expect- ing that his correspondents, Winchester and Howard, of Fredc- ricksburgh, would ship goods on his account, effected a policy on the cargo of the schooner Charlotte. The vessel had, in fact, sailed for Newburyport at the time the policy was made, having on board a cargo shipped by Winchester and Co. on their own account, consigned to Toppan, of which, however, he was not informed until after he had news of a loss. But with the infor- mation of the shipment he had orders to insure. Toppan was the general agent of Winchester and Co. and a balance was due to him as such. He therefore had an insurable interest in this cargo, after its being shipped and consigned to him, to the amount of his balance. Mr. Justice Sewall, giving the o])inion of the court, said, ' goods the jn'operty of To])pan -were expected, and these were insured. No goods of that description were shipped; and although goods of another description, the jiroperty of other persons, were shipped, and in which Toppan might have acquir- ed a special interest and control ; yet of these he had no know- ledge, nor had he any intention to insui'C them, cither for the shipper's or his own account.' And it was held that the policy (3) Toppan r. did not attacli.(3) Atkinson, 2 Mass. I'.cp. ^^^^ Mtirrny v. Col. Ins. Co. 11 .Toluis. 302. See also Bell v. Anslcy, IG Kast, Ml ; Cohen v. Hannam, 6 Taunt. 101. Some casps have been dcciilcd diircrently, which Mr. Park, G03. n. (looms not to bo law ; they aro lliscox x'. Barrett, before Loo, C. J. 1747, and r.ltod 10 East, 1 if) ; Torchard v. Whilniorc, 2 B. & V. \hb. n. beforo Mr. .Iiistico BiiUer, 178G. ; Carruthors v. Shoddcn, 1 Marsh. Hop. 416, & G Taunt. 14. ; Paj^e v. Fry, 3 Esp. 10,^), 2 B. k, P. 240, comrncnlod upon Iiy Marshall, C. J. 2 Cranch, 4 40. Chap. IV. Description of the Assured. 63 The same principle has been adopted in England. Goods had been shipped in the United States for Liverpool on account of the shippers. Advances were made by the consignees on ac- count of the consignments, and they elfccted insurance at Liv- erpool, charging the shipjjers with the premiums, and intend- ing to make the policies on their account, though this did not ap- pear from the policies. The ship, with the goods on board, was detained by the American embargo of Dec. 1807, and the con- signees claimed a loss. As they had an insurable interest them- selves on account of their advances, if the policies were to be applied to thdr interest, there was no defence ; but if the insur- ance was to be considered as made on behalf of the shippers, ^^]^°\^^^^ the court was of opinion that nothing could be recovered, because 536^[conway the loss was occasioned by an act of the American government, v. Forbes, 10 of which the shippers were subjects, and to the acts of which East, 539. the court held them to be parties. Lord Ellenborough gave the ^^^ht^'lnsr opinion of the court, ' that where a policy is eifected on behalf of Co. of N. A. the consignor, the consignee is not at liberty to apply it to his 4 Dal. 463. own interest.'(l) Insuring 'as agent' for a particular person, is equivalent to in- Insuring as suring ' on his account.' Israel Munson insured a vessel and plrfi^^larper- cargo ' as agent of Samuel Russell,' without any general descrip- g^^, tion of the assured. Russell had given Munson instructions to obtain insurance, but the property in fact belonged to Frederick Evarts. Chief Justice Parsons and the rest of the judges were ^-^^"^'^^1^ ^'• of opinion, that ' from the import of the words of the policy, and j^^'^^ ^^_ ^l' from the necessary construction of it, no person was insured Mass. Rep. from loss but Russell ;' and decided that Russell could recover J}- nothing under the policy for the benefit of Evarts.(2) A policy [j^i^ i^J^^Co! made by a person ' as agent for Holmes,' who was interested in o Johns. Cas. a cargo owned by himself and four others not his partners, was 359. held to apply only to Holmes's interest.(3) But if the nominal assured be described in the policy as Insuring as agent generally, without saying for whom, it may be shown "^^^^ sene- whose interest was intended to be insured, in the same manner as if the policy had contained the general clause ' for whom it may concern.' Where the assured were described in the fol- lowing manner, ' Samuel Davis, 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. giv- ing the opinion of the court, said, ' this insurance was in truth made for the use and benefit of Davis and Richardson, and we see no difficulty in carrying that intention into eflcct. When the underwriter agreed to insure for Davis as agent, either he was informed that Richardson was the principal, or he waived all information on the subject.'(4) (4) Davis v. In case of there being dificrent ]:)er3ons of the name under Boardman, 12 which the assured is described in the policy, it will of course be {jo^^^'seeTl'ib- applied to the interest of the party for whom it Avas intended, bertr. Martin, and by whose order it was effected. Where the assured was l Camp. 53G. described to be John B. Church, in a policy effected by him, ^i'.^,^'^^'''^^ '"* but at the request and on account of John B. Church, jun. the Cra^cb 'l96. contract was applied to the interest of the latter.(5) 64 Descripiio)i of the Subject. Chap. V. CHAPTER V. DESCRIPTION OF THE SUBJECT. Section 1. What description is in general sufficient. r. Coioo-an 4 ^'^ '^^ necessarj that the thing insured, and in some cases also Taunt. 330 ; the kind of interest intended to be protected, should be suffi- Cheriot r. ciently set forth in the policy, or that the policy should at least Jo^hnr35l prescribe the way of ascertaining to what the contract is to be (2) Hunter v. applied. As the contract Avill embrace no other subject than Prinsep, that described, its validity will depend upon the sufficiency of ?3T^''^'i'^^^* ^^^ dcscription.(l) A policy on hats cannot be applied to pitce 299 300. c. goods ;(2) nor one on oil and barilla, to soap ; but Emerigon 10. s. 3. thinks a policy on ingots of gold, may be applied to gold coins (4) Lawrence ^nd utcnsih, because they might be made into ingots without I'caines °"i6'- changing the substance. (3) This seems, however, to be a very Murray i'. Col! refined and somewhat metaphysical reason. Ins. Co. 11 In general a description of goods, freight, a ship, house, or other Johns. 302; thino; insured, by which it may be distiniruished and identified, nett, Marsh. Will be suilicient. li one own a halt or any other proportion 730 ; Law- of a ship or quantity of goods, he may effect insurance generall}'" rence?\Sebor, v.'ithout specifyins; his interest, and he will recover for such in- 2Caiues,203; . . i i ' /^x * i . • • .i Toppan f. At- ^^^''^^t as he has.(4) And a mortgagee may insure m the same kinson, 2 '^\'a\^(5) and so may the charterer of a .ship. William Oliver, jMass. Rep. being owner of one half of the schooner Hiram, chartered the 29'i 'c^ lO^l' ^^^^^^' ^^^^^1 ^^'^f^^ ^'"^ agreement to pay for it in case of loss. He ]. insured the schooner generally, without specifying that he had (5) Russeir. an interest in one half of her as charterer onlv, and the policy j^''j'";<^'o- 4 was held to be valid.(6) (6) Oirver r. Chief Justicc Parker says,' whether a mortgager ought to in- Greenc, 3 swrc h'la interest only in the ship, or may insure the ship itself, Mass.^Rep. clocs not appear to have been definitclj^ scttled.'(7) But he BartleUt'*^" sccms to l)e of opinion that the mortgager may insure the shij), v/alter, 13 ''1 ^-'ic samc manner as if he had made no conveyance. Thomp- Mass. Rep. son J. giving the opinion of the court in New York, seems to be ^I,\'"tt- ■• of the same opinion.(O) And in another case in New York the (7) Ili'ri'inson ■ • i i /i , i i . r. ball 13 vessel was insured by the mortgager or borj-owcr on bottomry — Mas3. lit}). it does not distinctly a))pcar whether it was a mortgage or bot- ^o^*w • 'omry — and nothing was said in the policy about the jxirticular rflmiih'2"' i'ltprcst intendcfl to be covered. The policy was objected to on c'aincs, 19. t'l's ground, huf the court did not regard the objection. (9) There (9) Krniiy r, sccms to l;o no reason Avhy the morlgager should describe his Clarkflon, I pru'licular intercsl, since he has the samc insurable interest as if Johns. .iH.i. , I. / , ^x (10) Locker. ^'^'' {""operty was irec of incuml)rance.(lO) North Am. In. IJut a lendrr on bottomry or respondentia cannot insure the Co. 13 MasB. shii) or goods cirectualiy, unless his particular interest is dcscril)- Jlep. Gl. • tj ^ 1 Sect. 1. What description is in general sufficient. 65 ed.(l) Lord Mansfield said, ' he could not find even a dictum (i) Williams in any writer foreio;n or domestic, that the respondentia creditor ^; '"^m'thiS . 1 111- iii-i-i Lames, ly ; may insure on goods, as goods, and that it was establisnccl now jiobertson v. as the law and practice of merchants, that respondentia and bot- Unit. Ins. Co. tomry must be specified in the policy.X2) The reason given by ;/°|^J^- ^^*- Mr. Justice Kent, is, that the risk is peculiar, as ' there is neither ^f Penn^'ln^f average nor salvage, and a capture does not mean a temporary Co. 4 Bin. taking only, but one that occasions a total loss.'(3) 251. If captors having no grant from the government, but only a b^^(,^^''3 5^^' well grounded expectation of a grant of a part or the whole of 1394;'! bi. the captured property, have any insurable interest, it has been 396. implied that it cannot be protected by a policy made directly (3) Robertson ^. , . P . , ^ T 1 TT'ii 1 u i r. Unit. Ins. on the ship, freight, or cargo. Lord Llien borough says, sup- ^^^ 2 Johns, posing such a chance insurable, must it not be insured spccifi- cas. 250. cally as such chance ? Must not the interest be so described in the policy ? Can a man who has no right, legal or equitable, either in ship or freight, eflfect an insurance on either, merely because he has a chance that some collateral benefit may arise to him if the ship and cargo should arrive in safety ?'(4) But such (4) Routh r. a policy was held to be valid as applied to the interest of the Thompson, 11 government in the prize.(5) (s^Same'r. ' The cargo or freight of the ship America, both or either,' Same, 13 being insured, it was made a question whether the policy might East, 274. be applied to cargo or freight, at the election of the assured, or must be applied to both in the proportion of his interest in the two subjects. Mr. Justice Sewall, giving the opinion of the court, said, ' To construe this insurance, at the election of the assured after the event, to be of freight only, exclusive of the cargo, would establish a very unequal contract between the parties. This construction is inadmissible, unless it be the unavoidable import of the words. The contract may be exj)lained to be an insurance of freight, or of cargo, if in the event the assured should have only one of those descriptions of property at risk, and if he should have both, then it is an insurance upon both, proportionably to the interest of the assured.'(6)(a) (6) Faris v. If the description designates the subject with sufficient cer- IVewburyport tainty, or suggests the means of doing it, a mistake of the name ]^^' ^^ ^ of the ship or of other particulars, will not defeat the contract. (7)' 476. ' A policy being made, on ' the Leopard, or by whatever other (7)Poth.h.t. name the same ship should be called, whereof was master for n-l05,andEs. that voyage A. B. or whoever else should be master ;' it ap- j 'Emer.^159. ' peared that the ship of which A. B. was master was the Leon- c. 6. s. 2. ard, and had never been called the Leopard. It was insisted in 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 different opinion, and held the testimony of A. B. that he was master of the Leonard and never had been so of the (cf) The case of Amery v. Rodgers, 1 Esp. 207, was cited hy the judge, but it seems hardly to be an analogous case. See 1 Emer. 290. c. 10. s. 1. 66 Description of the Subject. Chap. V. (1) Hall r. Molineux, cited 6 East, 385. (2) Clapham f. Cologan, 3 Camp. 382. (3) Le Me- surier v. Vaughan, 6 East, 382. (4) Ruan i'. Gardner, Condy's Mar- shall, 316. n. See De Sy- monds v. Shedden, 2 B. &.P. 153. Leopard, to be sufficient to identify the vesse].(l) Another ves- sel bearing the Spanish name, Tras Hcrmanas, was described in the policy, bj a translation ol" the name, as the Three SisterSy and this was held to be a good description. (2) 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 Presi- dent ; and it was urged that the admitting the sufficiency of this description, would expose underwriters to fraud. The court did not think the objection conclusive. Lord Ellenborough said, ' I do not see the mischief which may arise to the underwriter in this case. If there had been another ship with the same name as that mentioned in the policy, on board of which the plaintiffs had had goods, there might arise that inconvenience. But if the underwriters cannot be prejudiced by this mistake, the same reason does not apply.'(3) A case somewhat analogous to these was one in which the goods were described in the policy as marked in a particular manner, and the marks were incorrectly described. It was mentioned to the broker Avho acted for the insurers, that it was doubtful whether the description of the marks was correct, but it was the intention to insure certain goods mentioned in a letter then shown. It was held, that as the identity of the property was clearly made out, and as no imposition could have taken place, the assured might recover. (4) There Avere no doubt other facts named in the policy besides the marks, to show to what goods it was intended to be applied, for otherwise the case would go the length of deciding that the contract may be ap- plied to property different from that described in it, which Avould be a departure from well settled principles. (5) 1 Mag. 9. s. 14. \\esk. tit. Goods. (6) 1 Mag. 9. (7) 1 Mag. 10. s. 15. Wesk. tit. Goods ; 1 Em. 297. c. 10. s. 2 ; Park, 2G ; Marsh. 319. (}{) Thomas v. lloy. Ex. Ass. Co. Man. Dig. lfJ4. h. t. No. .0. K(i. ii;jo. (9) Uuplarity 7\ (Joni. ins. Co. Anthon's Ca.. at N. I'. 114. Section 2. Goods, PFares, Merchandise, 8^c. The ordinances of some countries have provided that the gene- ral description, goods, zvarcs, and merchandise, should not apply to perishable connnoditics unless they were particularly named ;(5) but there seems to be no such distinction in England or the Unit- ed States. Similar provisions have been made in some ordinan- ces respecting the precious metals, coined or uncoined ;(6) but they undoubtedly come within the general description, except in the case of clandestine trade ;(7) and there seems to be no reason for this exception, since the fact that the trade is prohibited, ap- pears to involve the question of concealment, or the legality of the contract, rather than that of the sii(li(icncy of the description. Mr. Justice Dampier says, ' Goods, rvares, and merchandise, will cover dollars if entered at the custom house,' but not bank- notos.(8) Mr. .Justice Spencer considered a curricle as coming within this description, and said, ' Here has been no conceal- ment, the assured was not bound to specify the nature of the cargo.'(O) The same remark seems to be applicable to specie or bullion. Sect. 2. Goods, Wares, Merchandise, S,'-c. 67 Jewels, rings, Slc. not designed for trade, but belonging to the persons of those on board, have been said not to come under this description ;(1) but there appears to be no reason why they (^-^ j^^,,^ q. should not, if the policy was so intended. 17. The interest of a respondentia creditor in the goods, was held to come within this description, under a usage of the East India trade in England.(2) (2) Gregory Lord EUcnborough says, ' Outfit cannot be considered as ^'- Christie, goods, in any proper sense of that word, that is, as part of the ^^^j.k'^\|^^ "' cargo.XS) _ _ (3) Hill v. Policies are sometimes made on goods ' by a ship or ships,' as Faiten,8 East, thereafter to be declared, or on goods thereafter to be declared, '^'^^• which leaves it to the assured afterwards to determine the sub- ject. But the voyage is described, and generally the time men- tioned within which the ships are to sail. Respectable houses formerly kept large sums constantly insured in this way.(4) (4) Wesk. tit. But there is some hazard of fraud upon insurers in these policies, Ship or Ships, as the assured may have a certain sum insured between particu- lar 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 happen, when it cannot perhaps be proved what other shipments have been made. On the other hand this description may operate unfavourably to the assured, as he can- not easily 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. Notwithstanding the .uncertainty of this mode of designating the subject, it has been said that the legality of it is too well established by usage and authority to be called in question. (5) (5)Kewleyf. The assured may declare to what subject the policy is to be Ryan, 2 H. applied after a loss has taken place. (6) If he were required to (6)Harmanr. declare before the loss, or lose the benefit of the policy, the con- Kingston, 3 tract would frequently be inelTectual, for it is adopted when no Camp. 150. more particular description can be made, and it often happens that intelligence of a loss is received as early as the information by which the insured would be able to make a declaration of his interest. From the necessity of the case, therefore, he must 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 intelligence which would enable him to do it.(7) (7) See Wes- It has been held that Avhere different shipments come within J^.^**^^.' ^~'^' the description in the policy, the assured may apply it to either, sh'ips.^^^ ° Messrs. Kewlcy and Ryan, of Liverpool, had insured 1260/. on board of the Elizabeth, from the Island of Grenada to Liverpool, on account of Freeland and Rigby. They had orders to insure 1300/. more on account of the same persons, and not knowing by what ship the goods were to be sent, they insured 600/. in London, and 700/. in Liverpool, ' at and from Grenada to Liverpool, 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- 68 Description of the Subject. Chap. V. 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 Heart of Oak 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 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 vvhat- (1) Ke-wley I', ever ship he thought proper within the terms of it.^l) Ryan, 2 H. A case had been previously decided to the same effect. Henchman had been insured 6000/. on goods on board of any ship or ships that should sail from Bengal to England between Nov. 1779 and July, 1780. During that time he shipped goods to the amount of 4889/. on board of the General Barker, and 4500/. on board of the Ganges ; and to cover the whole, had in- sured 4000/. in another policy. The General Barker was lost, and he claimed the whole loss under the policy for 6000/. He declared on oath before Judge Impey, previously to the loss, that he intended the policy of 6000/. for that shipment. The same objection was made by the underwriters as in the last case. But the court decided that he might apply the policy to that (2) Hench- shipnient.(2) "h^ r ^?'^^' ^^' another case, upon a policy ' on goods to be thereafter de- D. See also 8 ^^^^"^^ and valued,' in which the assured declared his interest to T. R. 15. n. be on board of the Tweende Venner and Neptunus, and after- wards, finding he had made a mistake, and that he had no goods on Ijoard of either of those vessels, declared his interest to be on board of another vessel ; Lord Ellenborough instructed the jury that ' the declaration of interest does not require any assent of the underwriters. The contract between the parties is com- plete when they have subscribed the policy. The declaration of interest is the mere exercise of power conferred upon the as- sured. It is generally put upon the policy for convenience, but this is not necessary, nor is there any necessity of its being in (3) Robinson wriling.'(3) V. Touray, 3 Ju Uiesc cascs the goods coming within the description and sTfcf C IM "^^ declared on, were insured in other policies; but where they & S. 217. ' si'C not insui-cd in other policies, it should seem, from the reason of the thing, that the policy will be considered as applying to all the goods coming within the description, at least, unless the de- claration of iiifcrcst is made, so that the assured would be bound by it, before a loss is known. Where a policy was ' on goods from Marseilles to the West Indies and b;ul<, by the Ainphitrite and other vessel or vessels;' the assured had goods on board of diflerent vessels to a greater amount than was insured, and those shi{)ped first, to the amount insured, arrived safe, and a loss oc- curred on those subscfjurntly shipped. It was held that the policy should apply pr()])ortionably to :dl the goods coming with- (4) 1 V.mir. ''^' '''^' dcscri|)iion.(^) The policy in this case docs not seem to 174. c. G.». 5. have corilaiu'd any provision for a declaration of interest, but Sect. 2. Goods, Wares, Merchandise, 8^c. 69 it would be giving an extraordinary effect to that provision, to hold that it gives the assured the right of choosing to which, out of a number of vessels, the policy shall apply, after the event is known. But as no particular form of declaration is re- quisite, the conduct of the assured in making other insurance specifically on a part of the property within the terms of the policy, as was done in the above cases, seems to be equivalent to a declaration of his interest. Where the policy contained a provision, that ' the risk was to attach to the proceeds in the return cargo,' the outward bound cargo was not sold, but the consignees purchased and shipped a return cargo, intending to reimburse themselves by the sale of the cargo consigned to them. A loss occurring, the underwriter objected that the return cargo was not the proceeds of that car- ried out. But the court held otherwise, on the ground that a return cargo purchased on the credit of that exported, was the proceeds of it, within the meaning of the policy.(l) (1) Haven v. Valin says if the goods described in the policy are exchanged ^'^^^^ }r at any port in the course of the specified voyage, the policy will 71^^^" ^^' apply to the substituted goods without any express provision for this purpose, where the insurance is to several ports, which seems to imply the liberty of exchanging the goods.(2) (2) v. 2. p. An insurance on all lawful goods has been held to apply to con- '^^' h- *• a- 27. traband goods as well as others. Mr. Justice Kent said, ' I am of opinion that contraband goods are lawful goods ; and that whatever is not prohibited to be exported by the positive 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.'(3) (3) Seton r. A coach-plate maker and cow-keeper was insured on ' his Low, 1 Johns, stock in trade, household furniture, /men, wearing apparel, and ais^'guj ^*^^ plate.' His house was burned, and with it a large quantity of r. Desdoity 2 linen drapery goods, purchased just before on speculation ; and a Johns. Cas. question arose whether the linen drapery was comprehended in "^ [ Juhel v. the description. Lord Ellenborough said to the jury, ' I am 2 John^'cas' clearly of opinion that the word linen in the policy does not in- 120, & 487. ' elude articles of this description. Here we may apply noscitur a sociis ; the preceding words are " household furniture," and the succeeding, " wearing apparel ;" the linen must be house- hold linen or wearing apparel. '(4) (4) Watchom Insurance is sometimes made on goods ' from the time of load- Jl; Langford, 3 ing them on board,' specifying at the same time at what port the ^°^^' risk is to commence. And in case the goods are not laden on board at the port where, according to the policy, the risk is to commence, there often arises a question whether the policy at- taches. It has Ijcen decided in a number of cases that the policy did not attach, and in those decisions three different grounds seem to be assumed ; one, that it is a condition, in the nature of a warranty, that the goods shall be loaded on board at the place Avhere the risk is to commence ; another, that the loading the goods on board at such place is the only event from which to date the commencement of the risk, and this not hav- 70 Description of the Subject. Chap. V. (1) Grant t'. Paxton, 1 Taunt. 463. (2) Murray v. Col. Ins. Co. 11 Johns. 302. But see the cases on this subject under War- ranty and Risks. (3) Lucena v. Craufurd, 2 N. R. 315. (4) Mumford V. Hallett, 1 Johns. 433. (r,) Eyre v. Glover, 16 East, 218. (6) Prichet r. Ins. Co. of .\. A. 3 Yeat.'i, 461. ing 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 most distinctly alleged in support of these opinions. A policy was eft'ected on goods by the Brunswick, 'beginning the adventure upon the said goods and merchandizes from the loading thereof on board the said ship at China, to all ports and places whatsoever.' The goods were taken on board at Canton for Europe, whither they were insured, and the vessel put into Bombay, where the goods were trans-shipped, and a cargo of cotton was taken on board the Brunswick for Canton, on account of the assured, which was lost by capture on the voyage. The assured claimed this loss of the underwriters, but the court held that the policy did not apply to this cargo.(l) And it was held in New York, under a policy ' upon all goods laden on board the Rolla, beginning the adventure from the loading thereof on board the said vessel at Cagliari,' that ' the hoisting the cargo out of the hold and restowing it at Cagliari, did not amount to loading it on board at that place.'(2) Section 3. Profits and Commissions. In regard to a description of profits, it was held by all the judges of England,(3) that a policy described to be upon a ship or goods, could not be applied to profits. It has however been decided in New York, that an insurance 'af and from Cumanato Nexv York., in and with the schooner Rising /Sim, on profits on all goods laden and to be laden, &c. which goods are valued at 2500 dollars,' — the words in italics being written, — was a policy on profits, though the valuation seems to refer more directly to the goods.(4) But the written part of the policy controls the printed, and here the insurance appeared, by the written part, to be upon profits. A policy ' upon goods, and also upon the body of the ship Elizabeth, the said ship, goods, and merchandizes, for so much as concerns the assured, by agreement between the assured and assurers are, and shall be on profits.^ — the words in italics being written, and the rest of the description printed — was decided to be a policy on profits. And Lord Elienborough said, ' are profits any thing more than an excresencc upon the value of the goods l)oyond the prime cost ?'(5) It is said in one case to be the practice in Piiiladclphia to insure profits under the denomi- nation of ' good.s.'(6) When the insurance is intended to be on profits or commis- sions, it is generally so described by using those words ; but this does not seem to bo absolutely necessary. An insurance was miide ' on properly in the brig Laviiiiii.' It was intended to cover the interest of Ilolltrook, (he master, who was to receive a com- mission of seven and a half per cent, on the cargo on its arrival in America. A loss happened on the homeward voyage. Tiie rourt said, ' this word property is very comprehensive, and there Sect. 4. The Ship. 71 can be no doubt that it was the intention of the parties to cover this interest of the master, whether it was to be considered as commissions, or as a specific proportion of the cargo belonging to him. The earnings of the master were completed ; when the homeward cargo was laden on board he was entitled to his seven and a half per cent.' And judgment was given for the assur- ed.(l) (l)Holbrook V. Brown, 2 Section 4. The Ship. f^]'' ^'^' By some cases it appears that an insurance of the ship only, covers the hull, sails, tackle, boat, armament, ammunition, and provisions ; in others, it seems at first view, that a narrower con- struction is to be put upon such a description. Mr. Justice Buller, speaking of a policy on the ship, said, ' the provisions are no part of the thing insured,'(2) and the expressions used by him (2) 1 T. R. in another case are of the same import ;(3) but his language 127. ought to be considered with reference to the particular subject ^^2. n. * ' under consideration, which was a loss by the consumption of * ' provisions during a detention of the vessel, and the question was whether it should be paid by the insurers on the vessel. Though the provisions were covered by a policy on the ship, it would not follow that the insurers would be liable for such a loss. Ac- cordingly a decision that they were not liable, does not establish that provisions are not comprehended in an insurance of the ship. It has been decided many times that the insurers are not lia- ble for provisions consumed during the detention of the ship, but it has been very distinctly decided also, that a policy on the ship covers the provisions and other subjects above mentioned. Lord Mansfield said, ' in a policy on a ship the insurance is on the body of the ship, tackle and furniture ;\4) and Lord Ellen- (4) Robertson borough, ' the hull and oiitjits are both protected by insurance on r. Ewer, I T. the ship.{5) Weskett says, the outfts comprehend sails, cord- l^'^p^ji^gg ^ age, provisions, armament, and ammunition.(6) In Lord Ken- Aspinwali, 13 yon's time the assured in a policy on the ship and furniture, re- East, 325. covered for a loss of the tackle and provisions.(7) Lord Ellen- ^^^j!** ^"*^* borough said, ' as far as the outfit consists of provisions put on aisop.'433, board for the use of the crew, they are covered by an insurance tit. Provisions, on the ship, being in fact part of the necessary furniture, stores, (V Brough v. and equipment of every ship proceeding on a voyage.'(8) rp j^/^q's.' Emerigon says, that the rigging and boat are covered by a policy (g) nni „. on the ship.(9) In the United States a similar construction is Patten,8 East, adopted ; a policy on the ship is understood to extend to the ^^^-^ ^ sails, rigging, tackle, furniture, boat, and provisions. ;179. c. 4. s.' 7. Where the policy was on the ' ship, tackle, and furniture,' for a voyage in the Greenland fishery, the whole court held that the lines and fshing tackle were not comprehended in this descrip- tion.(lO) They are generally insured under the name of outfit, ^^ picker<=dii 'which, in a fishing voyage, principally consists in the apparatus Park, 97-^1 and instruments necessary for the taking of fish, seals, &c. and Marsh. 127. 72 Description of the Subject. Chap. V. the disposing of ihem when taken, in such a manner as to bring (1) Hill v. home the oil or other produce of the adventure.'(l) In the Patten, 8 United States the different interests in fishing voyages are uni- East, 373. versally described as consisting of the ship, the outfits, and the cargo. Section 5. Freight. 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 accord- ingly the freight outward was lost. Lord EUenborough held that the description did not apply to the freight lost, but to that (2) Bellr. of the return cargo.(2) Bell, 2 ^\^Q question has occurred whether the freight of a part of a amp. o, vo^^age can be insured, without expressing in the policy that it is freight of only a part of the voyage. Where an insurance was made 'on freight of the ship Bethiah, at and from Bour- deaux to Virginia,' and the goods were to be carried in the ship from Bourdeaux to St. Domingo, by the way of Norfolk in Vir- ginia, Lord Kenyon instructed the jury that the underwriters had a right to expect that the goods upon which the freight was pay- able, were consigned to Virginia, and that the freight payable, namely, that from Bourdeaux to St. Domingo, being different from the freight described in the policy, the assured was not en- S) Murdock titled to recovcr any thitig.(3) But what importance could it be r. Potts, Park, to the insurers to be informed, to what place the goods were to 451 ; Marsh. j-,g carried from Norfolk, or in what ship ? Lord EUenborough said, this opinion ' was inconsistent with all other cases,' and ac- cordingly, upon a policy on freight ' from St. Ubcs to Ports- mouth,' the vessel having taken a cargo at St. Ubes for Gothen- burg, with the intention of putting into Portsmouth on the voyage, Lord EUenborough said, ' the only question is, whether the freight of a voyage may be insured a part of the way. This was a voyage 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 Bailey, J. said, ' it docs not vary the risk that the assured did not disclose to the underwriters that the ship was to proceed fiu'thrron a voyage to Gothenburg; for 1 cannot sec what advantage it could have been to them to be informed, that the freight insured would not be earned till the ship arrived at Gothenburg, or what disadvantage it was not to receive such in- .4) Taylor r. formation. '(4) And judgment was given for the assured. AVihon, ir, ii^ },;^j^ ])ccn lu'ld in New York that where the assured has an " ' ' ■ interest in the freight by a pailicuhir agreement, and not as owner of the vessel, he cannot insui-e freight generally, l)ut must de- scribe the particular interesl. 'J'he insurance was, 'at and from New V'ork to the port of discharge in the Mediterranean, upon Sect. 5. Freight. 73 the Ireight of goods laden or to be laden on board the Ibrig Delia.' The assured had sold the vessel with the reservation oi' the right to receive the freight for the voyage insured, which seems to make his interest precisely that of a charterer who agrees to pay the charter money at all events. The court said, ' All the interest of the assured was founded on this special agree- ment, and it could not strictly be denominated freight, since it was not an interest accruing to the assured as owner of the ves- sel for the use of her. It could not be insured as freight eo nomine, unless accompanied with a disclosure of the peculiar nature of the interest. It would otherwise be an imposition upon the insurer, who when he is asked to insure freight, must presume that he is dealing with the owner of the vessel. The owner has a stronger interest in the management and equipment of the vessel, than a stranger having no such stake in the voyage. And to allow such an interest to be covered under the name of freight, without explanation, would lead to abuse and fraud, by affording an opportunity to cumulative insurances upon the same interest, and interested combinations to destroy it.'(l) (i) Riley r. The grounds of this decision do not appear to be very satis- Deiafieid, 7 factory. The court says, the interest of the assured was not Johns. 522. strictly that of freight, which is defined to be the price of trans- portation paid by the owner of the goods to the owner of the vessel. But was not the assured the owner of the vessel pro hac vice ? Suppose the vessel had been chartered for a long time and employed as a general freighting vessel, would not the price due to the charterer from the shippers be freight ? If there be any distinction it is merely verbal, but there does not seem to be even this distinction. Freight is the name by which this inte- rest is insured and commonly known, and it seems therefore to be the proper meaning of the word in a policy ; if a definition does not comprehend this meaning of the term, it rather proves the defect of the definition than any thing else. In regard to the danger of frauds by the insurance of the same freight in the names of divers persons, the assured must prove his interest be- fore he can recover for a loss, and different jiersons could as easily prove themselves the sole owners each of a vessel as of the freight. As to the owner's having a stronger interest in the preservation of the vessel ; it depends on the fact, whether he has insured at an over-valuation. But somebody is owner and has this interest, of which the insurers have the advantage ; be- sides, the assured himself has the same interest, unless he has overvalued the freight, and there seems to be no reason for as- suming, as a general proposition, that persons to whom the freight belongs, whether owners of the vessel or not, have a greater in- (o) Oliver v. terest in the loss of the subject, than the assured in general have Greene, 3 in regard to other subjects. This case is opposed in principle to J^_'?'s. Rep. a number of others above cited, in which it was held that the jf^A^ns^^Co' charterer might insure freight generally, and here the assured iSMass. ilep! was to all intents and purposes ttie charterer.(2) The rule 61 ; Bartlett adopted by the court in New York seems more likely to defeat 1^- Walter, 13 fair contracts, than to prevent fraudulent ones. ^eT^ ^^' 10 74 Description of the Subject. Chap. V. (1) Dumas v. Jones, 4 Mass. Rep, 647. See also Hart V. Del. Ins. Co. Condy's Marsh. 281. n. (2) Barclay v. Stirling 5 M. &. S. 6. (3) Sanson r. Ball, 4 Dal. 459. (4) Cheriot v. Barker, 2 Johns. 346. Upon the same notion that freight is the price paid for the transportation of goods, it was objected on the part of the in- surers in a policy ' on the freight of the brigantine Rose,' that the description did not sufficiently designate the interest, because the assured vv as owner of both ship and cargo, and so no freight was to be paid. But the court said that, in such case, ' the proiits of the voyage might be insured under the denomination of freight.'(l) 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 ap- ply to the freight of goods taken on board at Havana.(2) It has been held in Pennsylvania that the description of ' freight advanced,' applied to the interest of a charterer of a part of the ship, who was to pay the charter money at all events.(3) It was so held in New York also ; where it was decided at the same time, that the owner of goods who had advanced the freight or a part of it, with an understanding that it was not to be refund- ed in any event, could not insure the money so advanced under the description of ' freight.'(4) It was adding so much to the cost and charges of the goods. Section 6. Reinsurance. (5) Merry r. Prince, 2 Mass. Rep. 176. (6) Note 2B1. Com. 460. (7) Andrce v. Fletcher, '2 T. R. I'^l- In reinsurance the same general rules apply as to the descrip tion of the subject, namely, the former policy subscribed by the assured ; and if this be not sufficiently described the reinsurance will fail. James Prince having underwritten one policy on the Columbia and cargo^ another on property on board of the Colum- bia, and another on effects, on board of the same vessel, was re- insured 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. (5) Christian says,' a reassurance must be expressly mentioned to be a reassurance, in the policy. '(G) But the case cited ])y him(7) does nol ap])car particularly to support the proposition ; which nevertheless may be true, as it docs not seem to be easy to de- scribe this interest without showing the policy to be a reinsur- ance. Chap. VI. The Premium. lb CHAPTER VI. THE PREMIUM. 1 HE contract of insurance must include a stipulation for the The premium premium, the rate per cent of which is always expressed in the ^""st be policy. But as the underwriter is liable to loss and entitled to ^^"^""^ upon. a premium, only as far as the property is at risk, it does not ne- cessarily appear by the policy what amount will be actually and effectually insured, and accordingly it does not show what amount of premium will be eventually earned. The amount intended to be insured appears in some cases, by the policy it- self, to be uncertain, as in a policy ' on m.oney advanced or to be advanced, for the use of a ship,' during an India voyage.(l) (i) 3 Burr. Insurance was made on a cargo to ' be valued as interest should ^'^^~' appear,' at the rate of premium of 15 per cent for six months; and 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 ,^. poUock v. be estimated at that rate on the value on board at successive pe- Donaldson, 3 riods, and for the time during which it remained on board. (2) Dal. 510. Generally, however, the premium on the whole sum named in rj,j^g premium the policy as insured, is considered in practice to be due imme- is due imme- diately, though in the United States it is not usually payable un- diately, but, til after the expiration of a credit of from two or three, to eigh- 1" f . * "''•i- , ^ ,. 1 1 1 r 1 isnotimniedi- teen months or more, accordmg to the length ot the voyage. ately payable. It appears that in England the premium is payable on de- mand ; but Avhere the policy is subscribed by individual under- w^riters, the broker generally keeps a running account with them, and gives them credit for the premiums received or due from the assured, out of which he pays such losses as accrue on po- licies put into his hands by the assured to be settled. He has a similar running account with the assured, whom he charges with the premiums, and credits with losses. He settles with each at stated periods or otherwise, according to the custom of the place, or the particular agreement of the parties. The practice is much the same in the United States in respect to policies effected through the agency of brokers. But these policies constitute only a small part of the business of insurance, a greater part of Avhich is done by incorporated companies that do not employ brokers. Where the contract is made through a broker, the premium note is generally made payable to him or his order, and not to the underwriters. In the case of insurance by an incorporated company, the premium note is generally made payable to the company hy its corporate name, or to some of its officers. Accordingly the broker in one case, and the company or its officers in the oiher, m.ay negotiate the note im- mediately, and compel the assured 'to pa}' it at its maturity, v.ith- 76 The Prernhm. Chap. VI. out any deduction for a loss or return of premium that may ac- crue before the period of credit expires. But these notes are rarely negotiated, and as the term of credit exceeds the usual length of the voyage, it is commonly known before the premium note is payable, whether any claim has accrued for a loss or re- turn of premium, and only the excess of the demand of either party over that of the other is actually paid. Both in England and the United States in the case of policies effected by the agency of brokers, the parties, in respect to the premium, are usually the assured and the broker. In respect to the policy and to all claims for return of premium and for losses, the parties are the assured and the underwriter. Construction The usual form of the policy contains a clause by which the of the receipt insurers confess themselves to have been paid the premium. mkim? ^^^" Where a negotiable note is given for the premium, this is a suf- ficient payment to be the ground of such a receipt. In England, where such a note does not appear to be usually given, ques- tions have arisen respecting the intention and eli'ect of this ac- knowledgment. The intention of the parties in inserting the acknowledgment appears to be plain enough from its import, and not to require explanation, any more than a receipt for money paid in other cases. But as the premium is not always paid at the time of sub- scribing, some reason has been sought after for inserting an ac- (1) p. 335, knowledgment in those instances. Mr. Marshall (1) says, 'an action will lie for the premium notwithstanding this formal ac- knowledgment 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.(o) But it implies that if this acknowledgment were not inserted in the policy, the as- sured would be obliged to prove that the premium had been paid, before he could recover for a loss. It does not appear, nowcvcr, why the acknowledgment must be inserted for this purpose, since a consideration for the undertaking on the part of the insurer is shown as much by a promise of the assured by which he is bound to pay, as by a payment. It seems to be a sufficient reason for inserting this acknow- ledgment, that a written contract, whether of insurance or of any other sort, ought to contain all the terms agreed upon, and the considerations that pass between the parlies. In acknowledg- ing the receipt of the premium, the parties adopt the form used in deeds of conveyance of land, which contain the same acknow- ledgment, though in tlie greater number of instances the pay- ment is not in l";ict made at the time of the conveyance. The same form is used in other instruments. It is not at all remark- able tlint the receipt of ihc premium should be acknowledged in iMigland, where it is paid at the time of su])scribing the po- (r;) 1 (-nrnp. 5:5 1. n. Mr. I'nrk cites (liis note of Campbell in his Edition of U!17, |>. iil, and calls it a ' sonsililn and acute observation of tlif rf'porler,' but it was the observation of Mr. Marshall. Chap. VI. The Premium. 77 licj, or is a debt due from the assured to the broker, who, in- stead of the assured, becomes the debtor of the insurer ; or in the United States, where it is paid, or the assured makes a pro- mise 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. In regard to the effect of the acknowledgment, it was for- merly made a question whether the underwriter could, not- withstanding it, maintain an action against the assured for the premium.(l) It was supposed that such an action might be (i) Park, 35; maintained, which led to the above ingenious construction, as Marsh. 335. Mr. Park considers it, of the acknowledgment. There arc a few cases in which the underwriter has recovered the premium of the assured, where, if he had not, an effect would have been given to fraudulent and unfair dealing. Foy, of Pillau, pro- mised a consignment of goods to Gordon, of London, a young man just beginning business, who obtained insurance on the goods upon the credit of this promise, the insurers supposing he would thus be supplied with funds out of the proceeds of the goods to pay the premium. Foy consigned the goods to another merchant, and a loss happening, and a claim for return of pre- mium accruing, the insurer claimed the right to set off the pre- mium. The court allowed the set-off with harsh expressions respecting the conduct of Foy.(2) In another case, Haynes, an (2) Foy v. insurance broker, being indebted to Simeon and not able to pay Bell, 3 Taxmt. him, Simeon proposed that Haynes should procure insurance ^^^' for him until the premiums should amount to his debt. Thus Haynes would be left indebted to the insurers for the premiums, and Simeon's debt be discharged. The insurances were ac- cordingly effected. But the insurers, learning the purpose of the broker and the assured, brought suits against Simeon for the premiums. The jury, however, being of opinion that the broker alone was debtor for these, found in favour of the assured. But the court was dissatisfied with their verdict, and would have granted a new trial had not the matter been settled by the par- ties.(3) (3) Mavor r. But where there is no such reason for controlling the effect of ^'"*^°"' q_ the acknowledgment, the insurer has been held to be estopped by it from demanding the premium of the assured, and from denying, as between himself and the assured, that he had re- ceived it. An action being brought by the assured for a return of premium, the underwriter offered to prove, notwhhstanding his acknowledgment in the pohcy of the receipt of the premium, that he had never received it. Lord EUenborough instructed the jury, that ' the insurer was bound by the receipt in the policy. If a man acknowledge that he has received a sum of money of a broker, and credits him with his principal to that amount, he shall not afterwards, as between himself and the principal, be allowed to say that the broker never paid him. 78 The Premium. Chap. VI. (1) Dalzell V. Muir, 1 Camp. 532. (2) Cummins V. Forrester, M. & S. 499. (3) c. 8. s. 2. p. 35. (4) Fowk V. Fensack, 2 Lev. 153. (5) Jackson v. Colegrave, Carth. 338. (6) Pinsacks & Fowks, 3 Keb. 575. (7) Grove r. Dubob, 1 T. R. 112. (8) Airy v. Bland, Park, 36. Marsh. 294. 1 should completely knock up the insurance business if I were to allow this acknowledgment to be impeached.'(l) Again, the same decision was given by the whole court in a case in which Lord EUenborough said, ' In the usual course of things the underwriter acknowledges, upon the face of the poli- cy, the receipt of the premium, which is an admission that he has received it through the intervention of the broker, and has no claim against the assured. His claim is against the brokcr.'(2) These cases establish the principle, that in England, at least, where a policy is eiFected through the intervention of a broker, the acknowledgment precludes the underwriter from afterwards demanding the premium of the assured. But how far this prin- ciple is the effect of the acknowledgment in the policy, or the general course of business, is a matter of some doubt. In 1802, Mr. Marshall expressed some doubt whether the pre- mium was the debt of the broker, being of opinion at the same time, that ' it would be for the interest of all parties that the rule that the broker alone could maintain an action against the assured for premiums, should be fully established and constantly adhered to.'(3) An old case,(4) and a dictum of the judges in another,(5) are cited ; which however seem to be of very little weight, as it does not appear that the policies referred to con- tained the acknowledgment, but rather that they did not, for Wild, J. said, ' the insurer only subscribes 100/. not the premium, which is never expressed in the printed policy.'(6) In Lord Mansfield's time an action was commenced on the part of the underwriter, against the broker, for premiums on policies made in the broker's name on behalf of his foreign correspondents, and no question was made whether the broker was debtor for the premiums.(7) It is stated by a witness in another case to have been the general practice in London as early as 1 764, for under- writers to look to the brokers only for premiums. (8) And in many sulxscqucnt cases this is directly decided, or obviously re- cognized to be law, without any express distinction between policies in the name of the broker, and those in the names of his cmj)loycrs.(a) These decisions have, however, in some measure grown out of the usage of London, and the usage is distinctly referred to by judges in giving their opinions. As far as the opinions arc founded ujjon such a usage, they are not aj^plicable in the United States, wliere the ])rcmium is not nndcrstood to be a debt from the assured to the broker, which the liroker couUl demand in his own name, unless it is made so by a special agreement, or under- standing, between the parties. An insurance broker is not dis- tinguished in iliis particular from any other agent. Where the {a) P,i/o r. Dickason, 1 T. R. SO.'); Edgarx-. Fowler, 3 East, 222; Edgar V. liumslcad, 1 Canij). 411 ; Dc Gamindo r. Pi<>ou, 4 Taunt. 240 ; Parker ij. Smith, IG East, 302; Miiiotl v. Forrester, 4 Taunt. 641 ; Ciimtniiif]^ v. Forrester, 1 M. &. S. 194 ; Kosler r. Eason, 2 M. & S. 112; Parker r. IJeasley, 2 IM. & S. '123; lluustouii r. Robertson, 2 Marsh. |{«'i.. \:A) ; (; 'i'aimt. I 1!! ; I Tfoll, 88. Chap. VI. The Premium. 79 assured at the time of eftecting 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.'(l) (l) Taylor ». In the United States the acknowledgment cannot in general j^^^^ii, 3 receive the construction put upon it in England, in case of the 25^^' ^^^' premium not being paid at the time of making the policy, name- ly, that the underwriter must look to the broker and not to the assured. Yet it can hardly be doubted that this receipt would be held to be evidence of payment between the parties to the policy, for to hold otherwise would be to give this acknowledg- ment no effect, and put the parties in the same situation that they would be in, if no such acknowledgment were contained in the policy. The acknowledgment was held, in the circuit court of the United States for Pennsylvania, not to be sufficient evidence that the agent, who eflected the policy, had paid the premium, so as to enable him to recover it of his principal, without other evi- dence.(2) (2) Melick Where the policy is void without the fault of the assured, or ^ond^^^i's^""' by its illegality, and also where the risk does not attach, no pre- Marsh. 709. mium can be recovered. And a negotiable note being given for n. ; Whar- the premium of an illegal insurance, and made payable to the ton's Dig. h. t. broker or his order, cannot be recovered by the broker.(3) .^-j ^y^'gi] ^^ ' A risk incurred, being requisite to make a premium due, it is Degrand, 15 in the power of the assured by putting none, or only a part, of Mass. Rep. the property, at risk within the terms of the policy, to annul ^^• the contract in whole 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 assur- ed to know whether any or what part of the property insured will be at risk ; and it would be a hardship, and a great dis- couragement to insurance, if the assured were obliged to pay the premium where no risk is run by the insurer, merely be- cause he is ready to run the risk. 80 Representation and Concealment. Chap. VII. CHAPTER VII. REPRESENTATION AND CONCEALMENT. Section 1. What constitutes a Representation or Cory- cealment. Representa- tion and Con- cealment de- fined. . (1) Thomp- son V. Bucha- nan, 4 Brown's Par. Cas. 482. Mil. 79 ; Fitz- herbert ?■. Mather, 1 T. R. 12. (2) Clason f. Smith, and Cole v. Mar. Ins. Co. Wharton's Dig. h. t. No. 28. p. 320. (3) VValden r. N. York Fir. Ins. Co. 12 Johns. 128. (4) Coulon t'. Bowne, 1 Caines, 291. (5) Stewart v. Dunlop, 4 Brown's Pari. C;a«. 482. n. ; Park, 320. Sec also the cases (;itr;(l in this chapter generally. Any contract obtained by the fraud of a party, is void in respect to the other parties. This is especially the case in re- gard to insurance, in which fair dealing and good faith are strictly required by the law, and much relied upon by the par- ties. The contract is generally entered into by the insurer in consequence of the representations of the assured, and if these representations do not enable the insurer to make a just estimate of the risk, it is plain that he ought not to be bound by the con- tract. A representation is a material fact stated, before completing the contract, by either party to the other, and a misrepresentation is the statement of such a fact which turns out not to be true. By a material fact is meant one that shows the nature and extent of the risk, and may induce the other party to enter into the con- tract. A concealment, on the other hand, is the suppression of a material fact within the knowledge of either party, which the other has not the means of knowing, or is not presumed to know. It is the suppression of a fact, the disclosure of which would have been an inducement to the other party not to enter into the contract. If either party, whether by design, or through negli- gence, mistake, or oversight,()) conceals or misrepresents a fact material to the risk, the contract will be void with respect to the other party.(2) But it will not be affected by the concealment or misrepresentation of a fact not material to the risks insured against,(3) as where the policy is against sea-risks only, and the fact suppressed or misrepresented, relates wholly to the risk of capture, and cannot ])Ossi})ly affect the rea-risks. Chief Justice Lewis says, ' a false representation caimot avoid the policy un- less it be on a point material to the risk. '(4) Concealment or misrepresentation by an agent is considered to be that of his principal, and has the same effect.(5) A concealment or misrepi'csentation is held to defeat the con- tract on the ground of fraud. To give it this effect, however it is not necessary that it should be an intended deception. An iiisur;i?ire was made in luigland on a vessel from New York to lMiiladelj)hia, and from a misconstruction of the captain's letter, as was contended in behalf of the assured, it was represented (hat the vessel 'was seen safe in the Delaware on the eleventh of Derember,' when she had been lost on the ninth, by running upon a chrvaux dc /rise. J^ord Mansfield said, ' a rcpresenta- Sect. 1. JVhat constitutes a Representation, ire. 81 tioii must be true, and il" the assured represents facts without knowing the truth, he takes the risk upon himsell'."(l) (i)Macclow- If the assured or his broker omits to state a material circum- ;di i\ Fraser, stance, supposing it not to be material, this discharges the un- p^ou^. 2G0. derwriters.(2) An insurance Irom Newport, in Rhode Island, \vmi''^"^^''^ "' 11 ■ c< ■ 1 1 1 • 1 1 1 1 Wilkinson, to Passage, m Spain, was made upon goods wluca had been Doug. 306. n. brought from Laguira, 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 Washing- ton 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.'(3) (3) Koime v. The obligations of good faith are equally binding upon both |^oi",^^*/^' ^ " parties; though the facts to be disclosed are generally in the Marsh. 473. n. knowledge of the assured, yet the insurer is equally bound to disclose all circumstances material to the risk within his private knowledge. If an undcrwriier insures a vessel which he knows to have arrived, the policy is void.(4) Where the insurance (4) Carter v. Avas against the risk of being drafted, under an act of pariia- Boehm, 3 ment, to serve in the militia, and the assured was told by the ^^"■''' ^^^^' underwriter, that ' he was secured completely against the opera- tion of the act,' and it appeared that he was not so secured, ■ Lord Ellenborough held the policy to be void.(5) (5) Duffeil v. A representation may be made orally or in writing.(6) It is, *) '^^°"'.L however, most frec|uently made in writing, or reduced to v.i-iting Seealso \st- by the consent of the parties at the time of making the policy, ley r. Ray, 2 and it is for the mutual advantage of the parties to adhere strictly Taunt. 214. to this practice, since it has a tendency to produce a more care- |; |)eiafidd^°? ful and fair representation of the risk by the assured, and saves Johns. 523;' 3 the parties from suffering by the forgetfulness or mistakes of Caines, 49 ; witnesses. " ^y'' ;°" ''" When a broker is employed it is still advisable for the Cmvv. "785. assured to have the representation made in writing, as the broker may, from mistake or a disposition to put the risk in a favourable light, make incorrect representations. Formerly many policies were defeated from this cause, which induced the [)ractice in London of preserving the written representations. in 1778, Lord Mansfield said, the written instructions of the assured to the broker, ' were never kept till many years ago, upon the occasion of several actions upon policies, where the brokers had represented many things they ought not to have re- presented, in consequence of which the plaintiffs were cast; I O) rawtonr. advised the assured to brinsian action asrainstthe brokers, which r>^^.^°"-oc 1 T 1 1 1 1 - s l^OWp. too. they did and recovered. (7) If one party state a material fact, at such time and under such j^^_ ^^^^^ ^i^g circumstances, as that the other may be supposed to have been a representa- thereby induced to enter into the contract, the statement is a t-on musi be representation. In one case it was stated, at the time of sub- '^^^'^^• ,11 82 Representation and Concealment. Chap. VII. (1) Da-wson f. Atty, 7 East, 367. (2) p. (3) Ed-wards V. Footner, 1 Camp. 530. (4) Witting- ham V. Thorn- borough, 2 Veru.'^OG; Free, in Chan. 20; Wilson r. Dacket, 3 Durr. 1361. (5) Biays v. Union Ins. Co. Condy's Marsh. 405. n. ; Wharton's Dig. h. t. No. 17. (G) Clads(one r. King, 1 M. & S. 35. See also Kitzher- bcrt V. Ma- ther, 1 T. 11. 12. (7) Ilfid i». Harvey, 4 IJow, 97. Obvious infer- ences from facts statc!(l, are a part f)f the reprcscn- tatioa. scribing the slip.^ that the ship was American, which it was, but being captured by the Spaniards it was condemned as not hav- ing on board the documents rccjuired by the treaty betwe^^n the United .States and Spain. Lord EHenborough said, ' as the ship was not represented to be American at the time zuhen the insu- rance zvas effected, the assured was not bound by it, and there was no necessity for her being documented as an Amcrican.'(l) Mr. Marshall expresses some doubt of this decision, and says, that an ' underwriter when he puts his name on the slip, does so upon the faith of the representation previously made to him, (no matter when) and he afterwards subscribes the policy without conceiving that any repetition of the representation is neces- sary. '(2) About two years after the preceding case was decid- ed, the same question came again before the Court of King's Bench. At the time of signing the slip and about a w-eek before signing the policy, the assured had stated that the ship would ' sail with two other armed ships, and that she was herself to carry ten guns and twenty-five men.' Lord EHenborough said, ' if a representation is once made, it is to be considered as bind- ing, unless there is evidence of its being afterwards altered or Vv'ithdrawn.' And in regard to the above case of Dawson ^•. Atty, he said, 'there, the first conversation was qualified and controlled by what followed, for when the policy came to be signed, the broker said, generally, that ' it was an insurance on goods in the Hermon,' Avithout describing her as of any par- ticular country.'(3) The conduct of the assured, or the circumstances under which the insurer subscribes the policy, may be equivalent to a repre- sentation, and have all the effect of a misrepresentation. Where one insurer, having a secret understanding with the assured, that he is not to be bound by his subscription, is merely a ' decoy rfwc/r,' this deception is equivalent to a misrepresentation in re- spect to the other insurers, who will accordingly not be bound by their subscriptions. (4) So if the assured neglects to obtain a knowledge of facts material' to the risk, with a fraudulent pur- pose, it is ec|uivalcnt to a misrepresentation or concealment. (5) Or if there is no negligence on the part of the assured himself, or the broker employed to eflcct the policy, yet if the captain neglects to inform the assured on the ship of a circimistance ma- terial to the risk, in a letter received by the assured before the policy is cirrcled, it is a concealincnl.(G) 'J'he provisions of the policy may have the eflcct of a misre- presentation or concealment, hisurance was made on goods irom Lisl)on to Clyde at a premium of ten per cent, ' to return five for convoy and arrival;' when (he assured knew that the vessel had sailed without convoj'. 'Jlie jiolicy was held to be void.(7) A i-ci)rrsrntation is construed according to the fair and obvious imjjort of tlie words, and considered etjuivalcnt to an express statement of all the inferences naturally and necessarily arising from it. A representation hy a resident in a neulral country that the goods arc his own, has been held to be a representation Sect. I. fVhai constitutes a Representation, S{c. 83 that they are neutral propcrty,(l) and equivalent to a warranty (i) Vanden- of their being so. (2) A representation that the ship is Amcri- heuvel v. can is in effect a representation that it will be documented as o johnrcas** such. (3) 451. It being stated by the broker to the underwriter that the ship (2) Vanden- insured was at Guadaloupe on the 28th of July, when the risk ^^,^"^''',!^"" was to commence, the court said, ' when it is stated that she v/as Jq^us. Cas. at Guadaloupe on a certain chy^ it must mean that she was there 173. n. in safety, and that no preceding accident was to be made good (3) Steel v. bytheinsurers.(4) • u u i- T-umt.^SS. Mr. Justice Bayley, speakmg ot a representation that the ship (4)Kembie v. was ' at Elsineur on the 2Gth of July, all well,' said, ' the natural Bowne, l conclusion would be that she was left there well at that time,' Games, 75. . and this was the construction of the representation adopted by the court. In this sense it was false, for the vessel had sailed from that port on the 2Gth 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. (5) (5) Kiiby v. If the assured states a mere expectation or opinion, or expresses Smith, 1 B. & himself in a qualified and doubtful manner, yet at the same ^' ^^~* time fairly, but without any absolute assertion of a fact, it has been held not to be a representation. Lord Pvlansfield said, ' if in a life policy the assured says he believes the man to be in good health, not knowing any reason to believe the contrary, though the person is not in good health, it will not avoid the policy .'(6) And where the assured said, ' the vessels were ex- (6)raT7sonr. pccted to leave Africa in November or December ' and thev had "^Vatson, left in May, it was held not to be a representation. (7) So where (■r^^'BRTherv the broker said the vessel was American, but ' he was directed Fletcher, not to warrant any thing,' it was held not to be a rcpresenla- Doug. 305. tion.(8) (S) Christie t'. In case of the insurers proposing to have a warranty in- Secretan, 8 troduced, that the ship should sail from St. Petersburg before '^' ^' ^^'' the first of August, and the broker said, ' There is no occasion for that; the ship has sailed some time and must now be at Gothenburg ; there is a cargo ready for her, and she is sure to be an early ship,' and the ship had arrived at Gothenburg be- fore the 13th of June, when this conversation took place, but was detained there, waiting for a cargo, until after the 8th of September, Lord Ellenborough said, ' I find no representation here upon the falsity of which the underwriters can defend themselves. 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. '(9) ^^gs pjubbard The consignee of goods insured from Lisbon to London, had r. Glover, 3 received a letter from the owner and consignor, dated October Camp. 312. 27th, 1307, saying the goods Avould 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 84 Representation and Concealment. Chap. VII. (1) Bowden ■v. Vauofhan, 10 East, 415. (2) Brine r. Featherstoue, 4 Taunt. 869. (3) Living- ston r. Mar. Ins, Co. 7 Cranch, 535, Sc 536. A represen- tation to the first under- writer ex- tends to the others. (4) Barber r. Fletcher, Doug. 305. Sec also Taw- son r. ^V'atson, Cowp. 785 -, Stackpool r. i^imoii, I'urk, G48 -, Marsh. 772 ; Feise v. I'arkinson, 4 Taunt. 640. (5) Marsilt ri r. Reid, 3 Eait,572. that if it had been represented that the ship would not sail within a month, insurance could not have been eflected, as the French army was expected at Lisbon. The ship did not 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 Avas made bona fide it should not conclude him.' The other judges were of the same opinion.(l) At the time of effecting a policy on a ship at and from Mes- sina 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 v/hich he drew, and if there was reason to doubt the truth of the conclusion, the underwriter should have inquired into the ground of that expectation. '(2) ' To constitute a representation,' says Chief Justice Marshall, ' there should be an affirmation or denial of some fact, or an al- legation which would plainly lead the mind to the same conclu- sion. If the expressions are ambiguous, the insurer ought to ask an explanation ;' and such was the opinion of a majority of the judges, though some of them seemed to be inclined to the opi- nion that an ambiguity ought to be construed against the assur- ed.(3) ' It has been determined in a variety of cases,' says Lord Mansfield, ' that a representation to the first underwriter extends to all the othcrs.'(4) The reason of the rule is, that they may have subscribed upon their confidence in his judgment and knowledge of the risk, of which they would not have the advantage, unless they could avail themselves of all the conditions upon which he subscribed. This reason applies exclusively to representations in favour of the risk, and which might induce the first underwriter to subscribe. A representation unfavourable to the risk, and which would have a tendency to prevent the first underwriter from subscribing, does not come within the reason of the rule ; for though the subsequent underwriters may be allowed to subscribe upon their confidence in the opinion of the first, without thereby putting themselves in a worse situation than that of the first, yet it seems to be going very far, to suppose, absolutely, and in all cases, that they do so subscribe; and unless this supposition is made, a representation of a fact, the suf)pression of which would avoitl the policy on the ground of concealment, ought to be brought home to (he hnowledge of cadi individual insurer. Hut it has been held that a representation to the underwriter who first agreed to take the risk, and whose name stood first on the slip but not on the policy, did not extend to the other under- wrilers. One reason given was that the slip, not being stamped, could not in Fiigland be produced in evidence to show that the j)crson who appeared, l)y the policy, to be tlie first underwriter, was not so. (.5) i5ut this case seems to be within the reason for extending to all the uiid cargo. Mr. Justice Washington said, 'That an omission to comujunicate the circumstance of not landiii'i the cargo, if ma- Sect. 2. Hliat facts must be disclosed, Src. 101 terial to the risk, whether by fraud or accident, vacated the po- licy. The underwriter takes upon himself the risk under the implied condition that he shall, as to all facts within the })rivate knowledge of the assured, be equally informed as himself. As to public transactions, foreign laws, the course and nature of the trade, by which the risk may be alfcctcd, the underwriter is al- ways supposed to be informed, provided they are generally known. And if generally known it is not necessary to bring a knowledge of them home to the insurers.' He was of opinion, however, that the circumstance of the cargo's not having been landed in Charleston, though many cargoes were carried in this J-^^^ Co N \ way, was material, and that the policy was void on account of coudy's its not being disclosed.(l) Marsh. 473. n. Chief Justice Tilghman, speaking of the same facts, said, 'The question is whether the underwriters had any reason to suppose that the goods had not been landed in the United States for the purpose of importatioxi, and whether the not landing them would expose the ship to greater danger of capture. Upon (2) Kohne r. these points I see no reason to doubt.' He and the other ins.Co. N. A. judges were of opinion that the policy was void. (2) ^ ^'"- ^l^- Where insurance was effected on a vessel and cargo from The goods the United States to Spain, warranted neutral, Spain then being purchased of at war with Great Britain, and the assured informed the under- ^ belhgerent. writers that five Spaniards with passports w^ere going passengers in the vessel, but did not inform them that the goods had been Pactsthat brought to New York by a Spaniard who had sold them there ; may cause his not disclosing this circumstance was held not to vitiate the condemuation policy. The court said, ' If according to any established adju- {ho"i|gd"b^"' dications of the belligerent courts, generally known, certain cir- the law of na- cumstances become grounds of condemnation, though in opposi- tions, tion to the law of nations, those circumstances, if known to the (3) Marshall assured, ought to be disclosed. But they did not know that the ''• Union Ins. assured was bound to anticipate every possible ground of sus- ^/'* ^^"i!^^'* ■ . • ,/„^ ^ *' ^ '=' Marsh. 473. n. picion. (3) A ship warranted Portuguese, but having an English super- A belligerent cargo on board, being captured, was condemned in France as car^o*^of a^^""' English, on account of her having an English supercargo, which neutral ship, circumstance, according to a French ordinance, was evidence of the hostile character of the vessel, there being war at the time between England and France. Lord Mansfield and the other judges were of opinion, that the policy was not vacated by .^^ Mevne r reason of the assurcd's not stating this fact to the underwriters, a^ alter, Park, it not appearing that the assured had any knowledge of the ordi- 306 ; Marsh. nance.(4) ^^''^• If the property is accompanied with a letter of instructions A document exposino; it to capture and condemnation, according to the well- «^P°*'ns the known decisions of a foreign court of admiralty, Mr. Justice (^ '^ lure. Washington was of opinion that the circumstance should be /.x g made known, 'and it was immaterial whether those decisions Uei. Ins. Co.* were consistent with the law of nations or not, as the danger of Condy's capture was the same.XS) -Varsii.4/3.n. 102 Representation and Coriceahnent. Chap. VII. ill Err. XXV. 2 Johns. Cas. 476. But see S. C. 1 Johns. Cases, 360. Contraband goods belong- ing to other shippers. National cha- The national character of the property is generally a subject racter of the ^^ warranty and not of representation. It has however been held in England that if the national character of the assured is •I ne^!! ^^^ known to the insurers, and is such as to expose the pro- B. ic A ^'SS. perty to more than ordinary danger of capture, it must be dis- ButseeHodg- closed. son t\ Mar. ]j ^^.^g j^gjj jj^ ]ow, 1 Johns Cas. 1 ; Ju- hcl r. Rhine- lander, 2 )ohii!i. Cas. 120; Rhine- lander r. Ju- hel, 2 Johns. Cas. Am. (7) Barker v. Blakes, 9 Kast, 2!J3. Sect. 2. WJiat facts must be disclosed, &rc. 103 In efFectinff a policy on freight from Leghorn to Smyrna and back to Legliorn, the assured did not disclose that the cargo belonging to a subject of France, then belligerent, was covered as the property of Harrod, the supercargo, a neutral. Mr. Justice Sewall, giving the opinion of the court, said, ' Where the insurance is of the freight of a neutral vessel, there is no implied agreement that the cargo shall l)e neutral ; for a neutral vessel may be lawfully employed in carrying the property of a belli- gerent. When the voyage commences in a foreign country un- der a supercargo who is at liberty to take the property of neu- trals or belligerents, the assured may be innocently silent, espe- cially when he is not questioned upon the probability of the event. But when the assured has intelligence which shows the risk to be under circumstances the most unfavourable to the un- derwriters, and it is known that his vessel is carrying a cargo that is not neutral, intelligence of this nature certainly ought to be disclosed. If the employment was known to the assured, including especially the agreement of the supercargo to cover ..^ c^ u the property of the belligerent by false papers, this certainly Mcr!F-*^&M.' ought to have been disclosed. Such intelligence was material, Ins. Co. 6 and the concealment of it was injurious to the underwriters, ^]^^^- ^^P- who might justly avoid a contract thus obtained. '(1) Facts material to the risk must not only be disclosed to the Facts must be underwriter but they must be fully and fairly stated, so that [""/i.^lotJd^"^" he may judge of the degree of risk. Where the assured knew that there had been a ' violent Storm lo storm at Norfolk, about eleven hours after the vessel sailed' which the from that port, and he represented to the underwriters that ' there ijeTn'^xpos^ed! had been blowing weather and severe storms on the coast, after the vessel had sailed,' without mentioning the particular storm ; a majority of the judges of the Supreme Court in New York held it to be a concealment. Thompson J. giving their opinion said, ' Unless the assured intended to suppress some information he had relative to this weather, we can see no reason why he did not communicate the information he had actually received. From the general communication given, the underwriter might be induced to calculate that the storm had not reached Norfolk ; or that the vessel had been out so long as not to be endangered by it. The representation was not made in quite as forcible terms as those in which the information was received.' But Chief pj^^ij. J o Justice Lewis dissented; he said, ' It is rather too much to say Caines,'57. the communication to the underwriter must be in the very ex- See Moses v. press words in which the assured has received it. The informa- ll^}- ^"®- 9°- r 1 ... . , 1 • 1 1 • 1 v\ hart. Dic- tion was such as to give the msurer reason to thmk the risk was 3^9^ j^^ ^^ -^^^ increased. It comprehended, in my opinion, every thing that is. was necessary. '(2) It is sufficient to represent facts, and the assured may he silent as to any speculations or apprehensions that may be grounded upon them ; as, 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 104 Representation and Concealment. Chap. VII. (1) Bellr. Bell, 2 Camp. 475. (2) Chaurand v. Angerstein, Feake, 43. (3) Stewart r. Morrison, Mil. 59. An American insured against Ame- rican capture. (4) Campbell V. Innes, 4 B. k. A. 423. It is immate- rial in what way the in- surer is in- formed of facts, (5) Bownc V. Shaw, 1 Caines, 489. The assured must make true answers to inquiries. (fi) I'oplf sfon V. K ilfhi-n, Whart. Uig. 319. h. t. No. 2:{. arrive, to St. Petersburg, had produced a great sensation on ac- count 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 Ellenborough said to the jury, 'The assured are only bound to communicate facts. The broker did communicate the fact of the ship's papers being sent to St. Petersburg for examination ; he was not bound to communicate the sensations and apprehensions which this fact produced at Riga.'(l) The assured had received letters from the master of the ship at St. Domingo, by which he Avas informed that the ship would •be ready to sail for France hehveen the ffth and tenth of Octo- ber. It was represented to the insurers that the ship would sail in October. It was the opinion of witnesses, and seems to have been that of Lord Kenyon, that this was not a fair disclo- sure of the intelligence.(2) A representation that the vessel was expected to be loaded between the 13th and 20th of Sep- tember, when she was known to have been loaded on the 13th, was held in Scotland to be a misrepresentation.(3) A ship and cargo being insured in England from that country to the United States 'against all risks, American capture or seizure included,' the broker omitted to disclose that the pro- perty 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 cap- ture and seizure, may not only omit to take proper means to pre- vent loss, but may possibly facilitate it by giving information to his own government upon the subject.' The policy was accord- ingly held to be void, on the ground that the insurers ought to have been informed that the property belonged to Americans. (4) As the assured is excused from disclosing a usage, or the uni- form regulations of the trade to which the insurance relates, which circumstances the insurer is presumed to be acquainted with, a fortiori, the contract will not be v^acated by the assur- ed's inadvertently omitting to represent any fact, however ma- terial to the risk, of which the insurer can be proved to have been informed in an\^ other way. (.5) It aj)jiears fi-om many of the ];rcccding cases that the assured must make true answers to the inquiries of the insurer respecting circumstances aflecting the risk. Such inquiries may make it necessary that the assured should disclose facts respecting wliich he might otherwise be silent. It has already appeared that circiuiist:infes adccling 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. If the assured is incjuircd of as to the age of the ship, and the place where she was built, he must answer the irK|iiiries truly.(G) This principle is not Hinilcd to the sub)c( Is of implied war- ranties, hisurance Leing made fur a voyage U])on which the Sect. 2. TVhat facts must he disclosed, Src. 105 ship had sailed before the policy was made, without a disclosure of the fact that the ship had sailed, the insurer objected that this was a concealment of a material fact. The court said, ' If the underwriter wanted to know whether the ship had sailed, he ought to have inquired,'(l) thereby implying very distinctly (l) Fort r. that such an inquiry would have made it oblioratory on the as- Le-e, 3 Taunt. sured to give a true answer. The same facts may be material or not according to the par- Whether a ticular circumstances. The time of the vessel's sailing is mate- ^a^^^jI rial and must be disclosed, if known to the assured, where the on the parti- vessel appears to be out of time. So in determining whether cuiar circum- the vessel is out of time; a few days more or less, from the time stances. of the vessel's sailing, are of greater importance in a short voy- age, than in a long onc.(2) lu li^Fri^T' In many instances it depends wholly on the particular cir- Dq^I 260. ' cumstances connected with a general fact, whether that fact is material to the risk. Goods were insured ' at and from Heligoland to a port or ports of discharge in the Baltic,' on the 8th and 13th of August, without disclosing that the ship, at that time, lay in the Thames. She did not sail for Heligoland until the 27th of that month. Lord EUenborough said, ' When a broker proposes a policy to an underwriter on a ship at and from a certain place, it imports either that the ship is there at the time, or shortly will be there 5 for if she is only to be there at a distant period, that might ma- terially increase the risk. But it has never been understood that the terms of such a policy necessarily imported that the ship Avas at the place at the very time, so as to make the assured guilty of deception if she were not. It was a question for the (3) Hull v. jury, whether the intervening period materially varied the risk Cooper, 14 in this instance.'(3) East, 479. The rate of the premium has been considered a circumstance The rate of of some importance in determining whether a fair representation prf"iiy"^a has been made. If the risk appears to have been known by representa- the assured, at the time of insuring, to be extraordinary, and tion. yet only the ordinary premium for the voyage Avas given, it af- (4) Bridges v. fords some presumption of more or less weight against the fair- Hunter, l M. ness of the representation.(4) Upon the same principle an ex- f^\ p/g^eiand traordinary premium is a ground of presuming that the risk was ,.. Glover, 7 represented to be extraordinary. (5) East, 457. Companies that insure against fire usually adopt certain rules Policies a- respecting representations, requiring the assured to make known gainst fir© of what materials a building proposed to be insured is construct- ed, 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 extent of the risk ; and these rules are made public by annexing them to the policy or other- wise. If these rules are made sufficiently public, the assured is bound to take notice of them, and to make a true and full repre- 14 106 Representation and Concealment. Chap. VII. sentation of the circumstances, which he is required by such (1) Newcastle rules to disclose.(l) Fir. Ins. Co. As far as the pubHshed rules of the company do not specify ^ 2B°^' ^^^ facts to be disclosed, the representations required to be 255'. ' made will be determined by the general principles already laid down, — facts material to the risk and not known to the in- surer, and which he cannot reasonably be presumed to know, must be represented. 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,' without stating that the warehouse was separated only by one other building from another warehouse which had been on fire on the same day. The fire was supposed to have been ex- tinguished by eight o'clock in the evening, but it was consider- Turner V* ^^ necessary to watch the premises all night. The fire broke Marsh. Rep. out again on Monday morning following, and consumed, among 46 ; 6 Taunt, other buildings, the warehouse insured. This was considered to be a material conccalment.(2) Toiicies on The same general principles as to representations or conceal- iives. ment, are also applicable to insurances on lives. The assured must make a fair and full disclosure of all the facts within his private knowledge, and which the underwriter is not presumed to know, which might justly be supposed to induce the under- writer to demand a higher premium or refuse the risk. Where the broker said ' he would not warrant ; but from the account he had received he behevcd it to be a good life ;' Lord Mansfield said, ' The broker does not pretend to any knowledge of his own, but speaks from information.'' It was held not to be a re- (3) Stackpool presentation that the subject was a good life.(3) V. Simon, In effecting a policy on the life of Elizabeth Swaync, the ^f^^^---''' broker did not state that she v^'as a prisoner for debt, occupying, however, a large airy room, in the county goal of Fisherton An- ger, in a situation perfectly healthy. She was about sixty years old and in good health. The court said, ' If the imprisonment were a material fact, the kccj)ing it back would be fatal;' but they thought it depended upon the particular circumstances, (4) irnguenin whether this fact was material or not.(4) V. Rayley, G Taunt. 106. Section 3. TJic JVithdrawing or Waiver of a Repre- sentation. An express warranty or stipulation including a fact represent- ed, or inconsistent with it, will control and supersede the repre- sentation, since the v.ritten agreement, as far as its express pro- visions extend, is conclusive proof of the conditions on which the contract is made. A ship Itcing insured ' to all or any ports or places' l)fyond the Cape of (Jood Hope, it was alleged that the assured had repi"(>s(>nLrd (hat she was going ' to Pondicherry C5) Rizc f. •'"'^ China.' Eord Maiisficld and the other judges held that any Fletcher, such re[)rescntation was superseded by the description of the Doug. 2iJy. voyage in the \)o\'xv.y .{b) Sect. 3. The Withdrawing of a Representation, 107 If a policy be made in behalf of ' whom it may concern,' the tmderwriter 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 elfected it resided there, but one of the part-owners resided at Curra9oa, 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 property whether belligerent or neutral.'(l) (l)Eltingr. Where the voj^age, as represented in the proposal for insu- Scott, 2 Johns, ranee, was not vrorth so high a premium by five or six per cent as that on which the ship actually sailed, yet this representation was waived by the description of the voyage in the policy. (2) ,^-. y^^^^^. In the case of a policy on the 'Spanish brig New Constitu- voortr. Smith, tion ;' the description imported and warranted that the brig was 2 Caines, 155. 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. (3) (3) Atherton But there is a distinction in this respect between an express J^. Brown, 14 and an implied stipulation or v/arranty. It has already appear- 152^^'see^also ed that the assured must make true answers to inquiries relating Pickering i-. to the subject of an implied warranty, which would be futile un- Dowson,4 less the contract were to be affected by the representations made ?,^",'^r*Z'^" , , . . . , , r "^ * • . 1 1 (4) Walden v. in reply to such inquiries. 'As mr as a representation extends,' New York says Mr. Justice Piatt, ' an implied warranty ceases.'(4) Firem. Ins. The question, whether a usage is controlled by a representa- ^°- ^^ Johns, tion or will supersede it, has already been suggested. (o) This (5-)*supr. 9 question 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 :'(6) then it should seem, (6) Mason r. if his observation is to be adopted in its strict and literal mean- Skurray, ing, 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 forcing it beyond the sense in which it was intended. It appears by some cases that 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, M^hen 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 commnnicafcd to the underwriters,' and ' disclosed'' to them ; ' they would perhaps have required a larger premium, or not have subscribed ;'(7) by which C^) Middle- it seems to be implied that a representation of the fact that the Biakes'TT captain was limited to one course, would have given the assur- k. \s^\ 108 Representation and Concealment. Chap. VII. ed a right to recover a loss ; neither of the judges said any thing of inserting the circumstance of the orders in the poUcj. The case seems to imply that a representation would have discharged the assured from the obligations arising from the usage. But the question appears to be involved in some difficulty and un- certainty. Neglecting to Instances have occurred in the preceding cases where the in- make inqui- surer, by omitting to inquire respecting circumstances relating •waived of in-^ to the seaworthiness of the ship, the national character of the formation. 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 those facts, in respect to which the assured is not required in the first in- stance to make any disclosure. If the facts disclosed suggest distinctly that there are other facts relating to the risk, which are not particularly stated, the insurer maj^, by neglecting to make inquiries, waive the right of being par- ticularly informed respecting such other facts. Goods were insur- ed on board of the ship Neptune, ' lost or not lost, from twenty-four hours after her arrival at her first place of trade on the coast of Africa ; during her stay on the coast ; and from thence to Liver- pool.' Before the policy was efl'ected the assured had received two letters from the person acting in the capacity of captain. In the first letter, dated at Bambia on the 15th of February, 1 800, he stated that the crew had ' been in a dangerous fever ;' that ' close to the river Danger, three canoes came off, and the blacks began to be very impudent ; they took a cutlass from the captain, and killed him and one of the landsmen, and the rest of the people were all very much wounded. There are only five left alive in the ship, and I cannot get one man here. We are all very sickly. The blacks plundered the ship of all our clothes, and all our stores are done.' The second letter was dated at Gaboon River, the 21st of April following; in which he said, ' We arrived in Gaboon River on the 24lh of March. The natives finding us weakly handed, and our goods taken from us, do as they please. I have nine men on board now. I made mention of the ivory, palm oil, &:c. m my last letter. I do not expect to get all my wood till the latter part of next month ; then you may expect my sailing.' This last letter only was shown to the underwriters. Lord Ellcnborough said, 'No un- derwriter is so little conversant with the African trade, as not to know that ships engaged in it always continue for some time on the coast. The assured laid before the underwriters a letter dated on the 21st of April, by which it appeared that the ship arrived in Gaboon River on the 24th of March preceding, and had then on board a ))art of her homcwai'd cargo. It was open to them to in(juirc, if ihcy thought it maleriid, whether that were her first ai-rival, or how long before she had arrived on the coast. Tiie fiiir inference from the letter is, that she had been upon the coast for some time, for the writer refers to different articles of the cargo, of which he had made mention in his last letter. If then (he underwriters wished for further information Sect. 3. Compliance with a Representation. 109 as to prior circumstances, they should have asked for that letter. The assured disclosed every thing which he knew as to the ex- isting state of the ship at the time ; it is a true statement of its then actual situation, and it suggests a former communication, so as to put the underwriters upon further inquiry, if they thought it material.' Lawrence, J. said, ' If the underwriters wished for further information, it was their own fault that they did not (j) Freeland call for it, when the letter they saw referred to a former let- v. Glover, 7 ter.(l) East, 457. ' A representation' says Lord EUcnborough, ' will be binding, a representa- unless it be afterwards withdrawn.'('2) The assured may at any tion may be time before the policy is signed, withdraw any representation withdrawn, previously made,(3) by giving the underwriters explicitly to un- (2) Edwards derstand that he was mistaken in regard to the facts represented, camp.^'sSO. or that he will not be held to a compliance with what he had (3) Carter v. verbally promised. Lord EUenborough held that the assured Boehm, 3 virtually withdrew a representation made by him at the time of ^^"' ^^^^• signing the slip, by making another and dift'erent representation at the time of signing the policy. He said, ' The first conversa- tion was qualified and controlled by what foIlowed.'(4) (4) Edwards t'. Footner, 1 Camp. 530. Section 4. Compliance with a Representation. It is sufficient that a representation is equitably and substan- tially complied with, and not requisite that the facts should be lite- rally and precisely as they were stated.(5) If the existing facts or (5) De Hahn intelligence on which the representation is made, be on the whole v- Hartley, 1 as favourable to the risk as they were represented to be, and i,' ^' ' " correspond in general to the representation, the insurers have no ground of complaint, though the statement Avas not literally and minutely correct. Where it was represented that the vessel would sail in ballast, but the captain, without the owner's know- ledge, took on board a cask of shoes and ten barrels of gun- f)owder ; Kent, C. J. said, ' The representation of sailing in bal- ast was merely stating that the vessel would not be exposed to ,^. ^ ,„i i^„ 1 -1 T 1 1 1 1 • 1 1-11 C") buckley the sea perils attending a loaded ship, and was substantially ^.. Deiafieid, performed.'(6) 2 Caines, 222. It being represented that the vessel would sail with twelve The ship to guns and twenty men, she sailed with nine carriage guns and have twelve six swivels, and fourteen men, and seven boys. Boys were p"^ /^"" . T , , . . . "^ "^ twenty men. considered to be men within the description in the reprcscnta- ,^. _ 1 T r ii'i 1, (7) I awson v. lion, and as the lorce appeared to be equivalent to that repre- \vatson sented, though not the same, the contract was held to be valid.(7) Cowp. 785 ; A vessel, French built, Avas represented to be oAvned by Ame- Doug. 12. n. rican citizens, and to have on board an original bill of sale, or The ship to an attested copy of it, and such a bill of sale Avas on board, but ^^^'^^ onboard on the ship's being captured Avas not produced, and the captain, bjn of^sale. on his examination before the Admiralty court at Halifax, de- nied that he had 3.ny such bill of sale on board. It Avas held that the representation was material, and had not been complied with. Kent, J. said, ' It Avould be absurd to suppose that the 110 Representation and Concealment. Chap. VII- (1) Murray v. Alsop, 3 Johns. Cas. 47. See 1 Rob. 103. The ship re- presented to be neutral. (2) Dawson r. Atty, 7 East, 367. (3) Vanden- heuvel f- Church, 2 Johns. Cas. 173. n. (4) Alsop V. Coit, 12 Mass. Rep. 40. A good life. (5) Ross V. Bradshaw, 1 BI. 312. (6) Marshal r. Un. Ins. Co. Whart. Di?. 319. h. t. No. 19. (7) Willes V. filover, 1 N. ]l. 14. See Anon. Skin. 327. bill of sale on board, in a concealed situation, and never to be used, fulfilled the intention of the parties. The only question then is, whether the bill of sale is a material paper.Xl) A ship represented to be neutral must have the documents ne- cessary to prove its ncutrality.(2) A representation that a ship was neutral, was held in New York to be ' equivalent to a warranty ,'(3) and it accordingly requires that the ship should be owned, documented, and navigated, in conformity with the representation. It being represented that a ship would ' sail as soon as the fri- gates, calculating to take advantage of their protection,' and she sailed before them ; this was held not to be a compliance with the representation. '(4) At the time of effecting a policy on the life of Sir James Ross, he was represented to be ' a good life.' It appeared that he was subject to great inconvenience and a partial palsy, in con- sequence of a wound received at the battle of La Feldt. But as the wound appeared to be onlj^ inconvenient, and not danger- ous, the representation was considered to be frue.(5) Section 5. Effect of a Concealment or Misrepresentation. One of the conditions on which the underwriter subscribes the policy is, that he has been previously informed of all the ma- terial facts within the knowledge of the assured, and not pre- sumed to be known to himself; and it appears from the preced- ing cases that a non-compliance with this condition — a conceal- ment or misrepresentation — annuls his subscription and prevent.'* the contract from being obligator}^ on him. If a material fact be misrepresented or suppressed, the con- tract will not bind the underwriters, although such fact relat- ed to only a part of the subject insured,(6) and though no loss arise from the circumstance concealed or misrepresent- ed. In the case above cited, of an insurance from Berderygge to London, where the broker neglected to inform the insurers that the vessel was ready to sail on the first of December, from which the insurers might have supposed that she was out of time, she did not in fact sail until the 24th of that month, and therefore had the broker known and disclosed the actual facts, the pi'cmium would have been the same. But still the policy was void, for the insurers had a j'ight to the information, and subscribed u]ion the condition of its being disclosed. (7). In the case of a ])olicy upon the ship Davy, a letter had been received in which the writer said, ^ On the 12th I was in com- pany wilh the J^avy ; at twelve at night lost sight of her all at once ; the captain spoke to me the day before, that she was leaky, and the next day we had a hard gale.' This informa- tion was not connnniiicaled to the insurei's. The shij) in fi^ct conlitiuf^d on her voyage until the 19lh of the same month, whfd sIio was captured by the S[)aniards. Chief .Justice Lee ' ihouirht it not material llial the losi was not such a one as Sect. 5. Effect of a Concealment or Misrepresentation. Ill the letter imported ; for those things are to be considered in the situation of them at the time of the contract, and not to be ^P Seaman v. • 1 1 ci 1 ^/-,\ I'onnereau, 2 judged oi by subsequent events. (1) Str. 1103. A broker knowing that a ship, having on board a part of the goods insured, was reported to have been seen at sea ' deep (2) Lynch v. and leaky,' did not disclose this information to the underwriters, ^^""^^"o^' ^'* ,„, ,r' --11 1 1- ^1 111 Last, 494 ; 1 hough It was testihed that the ship was not deeply laden or Lynch v. Ha- leaky, the suppression of the information defeated the con- miiton, 3 tract.(2) "T-^""*- 37. Though material facts arc suppressed or misrepresented (3) Bridges v. through mistake or forgetfulness, and without any fraudulent Hunter, i M. purpose, it has the effect to defeat the contract.(3) ^ ^* ^^• But according to one case there may be instances in which Concealment a concealment or misrepresentation may not avoid the policy. ^^ ^° antece- A ship insured ' at and from Jamaica' was there in July, whence the captain wrote in August to the owner in England, omitting to mention that the ship had struck upon a rock in Manchineal harbour, though she had been got off, before the captain wrote, without appearing to have suffered material damage. The policy was effected after the captain's letter had been received, and the circumstance of the ship's having struck, was not made known to the insurer. It afterwards appeared that the ship had been very considerably injured by the accident. Lord Ellen- borough said, ' By the captain's protest there is evidence that he suspected the ship must have sustained damage. If it were but a dubious case he ought to have communicated it. If the captain might be permitted to wink at these circumstances without hazard to the owners, the latter would in such cases instruct their captain to remain silent, by which means the un- derwriter would incur the certainty of being liable for antece- dent loss. To prevent such a consequence, and considering that what is known to the agent is impliedly known to the principal, I think that no mischief will ensue from holding that the antecedent damage was an implied exception out of the policy. If the principle be new, it is consistent with justice and convenience.'(4) The policy was accordingly held to be valid (4) Gladstone in respect to the other perils and losses insured against. -v King, l M. This case does not come within any principle that has been ^ ^* ^^' distinctly recognised in any other. If it can be reduced to any general principle, it must be an exception to the rule that a con- cealment avoids the policy. The fact that the ship had struck, could not, in respect to the subsequent risks, be of any impor- tance, except in relation to seaworthiness, in regard to Avhich the assured is not required to make any representation. The case amounts to this, then, that the concealment, without fraud, of an antecedent loss, coming within the terms of the policy, but not affecting the other risks and perils insured against, does not avoid the policy, but only operates to exempt the insurers from the payment of such loss. It would be inconsistent with many of the preceding cases to go further than this, and say, that the concealment or misrepresentation, without fraud, of a fact which could not possibly affect all the risks in the policy, — 1J2 Implied Warranties and Conditions. Chap. VIII. Representa- tion of a fact subsequent to the com- mencement of the risk. (1) Middle- wood V, Blakes, 7 T. R. 164. as the fact of national character, for instance, does not affect sea-risks, — will not avoid the policy, but leave it valid in respect to the risks not aifected, and throw upon the assured those that are afiected, by the fact concealed or misrepresented* But if the question were new, reasons of some weight might be urged in favour of adopting such a principle. In the case of the captain's being restricted to one out of three courses, Mr. Justice Lawrence said, ' if the ship had been captured before she took the northern course, I should have thought that the asssured would have been entitled to a verdict.'(l ) If this was a question of concealment, as the court appeared to consider it, another exception is furnished to the general rule, that a concealment makes the policy void from the beginning. Suppose the assured should represent that the ship would take an armament as a letter of marque at some intermediate stage of the voyage, and this representation should not be complied with ; it would seem to afford no reason why the insurer should not pay a loss occurring before the non-compliance. If the in- surers are liable for such antecedent loss, it is upon the princi- ple that a representation does not avoid the policy until it is falsified, and accordingly that a misrepresentation or conceal- ment, Avhich does not relate to the beginning of the risk, will make the policy void only in respect to a part of the voyage. CHAPTER VIII. IMPLIED WARRANTIES AND CONDITIONS. The ({[((A of a mi. Pliil. CJo. Condy's Marsh. 8 10. n. ; S. C. Wharton's Diq;. .32[;. n. 79 ; Ta) See Hibbert x'. Martin, Park', 344 ; Aiinon x-. Woodman, 3 Taunt. 299 ; Cnulor v. Phil. Ins. Co. Condy's Marsh. 8 10. n. ; S. C. Wharton's Diq;. .32[;. n. 79 ; Taylor v.\jOW('\\\ 3 Mass. Rep. 318; Brown r. Girard, 4 Yeates, 115; Weir V. Aberdeen, 2 B. &, A. 320; Olivcrson x'. Loughnan, cited 2 B. & A. 322; ForI)es v. Wilson, Park, .311. {h) Parker v. VnU<, 3 Dow, 23 ; Taylor v. Lowell, 3 Mass. Rep. 317 ; Barnewall v. Church, 1 Caines, 234, 24G. Sect. 2. Seaworthiness of the Ship. 117 apparent cause, and without having encountered any known ac- cident to occasion material damage, was, from this circum- stance, considered as not having been seaworthy when she sail- ed.(a) Where it appeared that a ' part of the timbers were decayed, and the iron work in general was very much decayed and wrought loose,' though the ship had encountered a storm after the risk commenced, yet as none of these defects could be traced to the storm, or other accident happening after the risk commenced, but appeared plainly to have existed before, the ship Vs^°"^!f% was held not to have been seaworthy at the commencement of ][)ow°2l9. ' the risk.(l) The warranty of seaworthiness relates to the beginning of the The warranty risk; as soon as the insurers begin to be liable for losses, the ofseaworthi- assured becomes bound by the conditions on which the liability ""thrbedn- of the underwriters depends. When it is said, that if the vessel ningofthe becomes unseaworthy an hour after the risk commences it is no risk. violation of this warranty, the meaning is that the warranty of seaworthiness is not an engagement that no disaster shall ren- der the vessel unseaworthy. (6) If the ship becomes unseaworthy after the commencement of the risk, through the fault or negligence of the assured, or that of his agents, for whose conduct he is answerable, this, like any other unnecessary enhancement of the risk, discharges the un- derwriters. The efiect of a non-compliance with the warranty of sea- The effect of worthiness, as well as of the forfeiture of any other condition, ^ non-comph- is to discharge the underwriters from their liability under the ^ar^riuity of policy. If this condition is forfeited at the commencement of seaworthi- the risk, it doubtless discharges the insurers from all liability ness. whatever; but it does not appear to have been decided that a forfeiture of this condition, subsequently to the commencement of the risk, discharges the underwriters from their liability to pay antecedent losses. It may be inferred, on the contrary, that the underwriters are liable in such case for previous losses. A vessel insured 'at and from Surinam,' after lying there a month, sailed in an unseaworthy state, not having a sufficient crew. With respect to the return of premium Chief Justice Mansfield said, ' Here is the ship kept a month at Surinam in loading, and to all appearance, in the judgment of mankind, cer- tainly seaworthy, and if she had been sunk or burnt there, the underwriters could have made no defence. And it is very (o) Talcot V. Com. Ins. Co. 2 John?. 124, k 467. See also Mun- ro V. Vandam, Park, 333. n. ; Watson v. Clark, 1 Dow, 336 ; Coit v. Del. Ins. Co. Wharton's Dig. h. t. No. 76, p. 325. (6) Mills r. Roebuck, Park, 335 ; Bermon r. Woodbridge, Dou^. 781 ; Watson v. Clark, 1 Dow, 336 ; Hacks v. Thornton, rHolf,30; Garrigues v. Coxe, 1 Bin. 592 ; Patrick v. Hallett, 1 Johns. 245 ; Peters v. Phoen. Ins. Co. 3 Serg. &, Rawle, 25 ; Plantamour v. Sta- ples, 1 T. R. 611. n. 118 Implied Warranties and Conditions. Chap. VIIl. (1) Annen r. Woodman, 3 Taunt. 299. (2) Taylor r. Lowell, 3 Mass. Rep. 347. Strange if the assured can say, on its being proved that the ship was not seaworthy when she finally sailed, that therefore the unseaworthiness shall be carried back to the time of her arrival at Surinam. '(1) As a subsequent forfeiture of this condition is held not to re- late to the beginning of the risk, in respect to the premium, it may be inferred that it does not so, in respect to the liability of the insurers for losses accruing before the violation of the war- ranty, since to hold otherwise would be to maintain that a con- tract may, without the intervention of any illegal act, be null in respect to one of the parties, while it is binding upon the other. Mr. Justice Sewall, giving the opinion of the court, said, ' If we may have recourse to general reasoning, for want of any di- rect and complete authority from decided cases, it may be ob- served, in regard to the implied stipulations on the part of the assured, that the vessel shall be suitably manned, shall be con- ducted with the advantage of the customary pilotage, and shall be seaworthy ; that although the remedy adopted or provided by the common law, against a failure in either of these stipulations, is a forfeiture of the entire contract on the part of the assured ; yet this respects losses or damages subsequent, and not pre- vious, to the failure of the assured in his implied engage- ment.'(2) Though it appears by many of the preceding cases that a non-compliance with the warranty of seaworthiness discharges the insurers from all subsecjucnt liability at least, yet it seems to be intimated, in an opinion given by Chief Justice Abbott, that a non-compliance with this warranty may take place, and still, if the defect, whereby it is violated, is of a temporary na- ture and soon remedied, and it appears that no loss could have occurred in consequence of the defect, the liability of the under- writers continues, notwithstanding such violation. A ship being insured from London to Bahia was found, after sailing on the voyage, to be overloaded, and on this account put back for the purpose of discharging a part of her cargo, to which the underwriters consented, by an endorsement on the policy. After being lightened she proceeded on the A'oyage, during which a loss occurred. Abbott, C. J. ' It is said that this memorandum expressing the consent 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 once sailed with a cargo greater than was proper for that voyage, and therefoi-e in an unscaworthy state, wholly put an end to (heir ]ial)ility on the policy. That ])roposition would go the length of establishing, that if a vessel at. the outset of her voyage, be Ijy mistake or accident unseaworthy, owing (o some defect which is immediately discovered and remedied before any loss happens in conse(iuence of it, still that the policy would be void and the underwriters not liable. 1 was surprised at that propo- silion, because, if true in point of laAV, I fear we should find nriny cases whei-e the assured could have no claim u|)on the underwriters, because something was wanting or something ex- Sect. 3. JVational Character and Leg-al Conduct. 1 1 9 b cessive, at the instant of the ship's departure, although the want had been supplied or the excess removed, before the loss happened. Suppose a vessel is unseaworthy unless she has two anchors, being destined for a long voyage, and she sails from London to Gravesend with only one ; shall it be said, that if no loss happens between London and Gravesend, and the vessel at Gravesend takes on board her second anchor, and then pro- ceeds on her voyage, that the underwriters are not liable for a subsequent loss, and that the policy is so completely at an end, that even if the underwriters agree to waive the objection and to allow her to proceed on the voyage, their consent shall be unavailing. These inconveniences, which would be continually occuring in practice, would lead to dangerous consequences, by opening a door to underwriters to break their engagements by means of trivial circumstances, the effect of which no one ever contemplated. I think, therefore, that that proposition can never be maintained.'(l) ^aI'TI^ B. & A. 320. Section 3. JVational Character and Legal Conduct. It has been said to be a condition of the policy or an im- plied warranty, that the ship shall be navigated, and the adven- ,^, ture conducted, according to the laws of the country to which 177. b. i.e. 5. the vessel belongs, the treaties subsisting between that and other s. 4. countries, and the law of nations.(2) We have seen that the trade rj,^^ captain must be legal; this warranty has reference to the manner of has not the carrying it on, and the doctrine stated, is, that although the ad- certificate re- venture itself be legal, yet if the assured violate the law in prose- ^"""^^ by cuting it, the insurance is thereby defeated. The captain of a vessel employed in the African slave-trade, had not the certifi- cate required by an act of Parliament,(3) that he had served as (3) 31 Geo. captain in the same trade in one previous voyage; as chief ^^^••^- ^4. s. 7. mate or surgeon for two voyages ; or as chief or other mate for (4) Farmer v. three voyages. The insurance on the ship was held to be void t^^=?V, J ^^ on account of the captain's not having the certificate required by 1 camp'. Rep. the act.(4) 436. n. ' But this doctrine appears to be subject to some qualification. How far iUe- The want of a proper certificate in the case just cited was con- gal actsofthe strued by the court to render the voyage illegal, and it is imma- fissured will terial whether a trade is directly prohibited, or rendered illegal tract. ^ '^°"* by some act of the assured. Where an act is done of which this is the effect, the policy is vacated on the ground that an illegal trade cannot be insured. But it does not appear that every illegal act of the assured or his agents, in conducting the adventure, renders the voyage illegal ; and if an act has not this effect, there seems to be no reason for holding that it defeats the policy on the ground of the violation of any implied warranty, or the forfeiture of any condition. Where any act of the as- sured or his agents, whether legal or illegal, unnecessarily en- hances or changes the risk, the insurer is discharged. But the insurer seems to have no concern with the acts of the assured 120 Implied Warranties and Conditions. Chap. VIII. or his agents, except as far as they affect the risks insured against. But if any acts of the assured or his agents, whether in viola- tion of the law of nations or not, are done out of the usual course of the trade, and are such as the underwriter could not be presumed to anticipate, the loss arising from such acts must fall upon the assured. Acts of this description may have the effect of discharging the insurers from all subsequent liability, on the ground of a deviation, where the risk superinduced is so blended with those insured against, that it is impossible to say that the risk so incurred, might not contribute to any loss which may subsequently accrue. Chief Justice Marshall says, ' It is not impossible that without a warranty that the vessel is neutral property, the attempt of a neutral vessel to enter a blockaded port might be considered as (!') M r I 9 discharging the underwriters. But no such decision appears Co. r. Woods, ever to have l:)cen made ; nor is the principle asserted, so far as 6 Cranch. 45. is known to the court, in any of the treaties on the subject. '(!)• A ship belonging to a Swedish subject resident a Gothenburg, and insured from that place to Riga, took false papers, repre- senting that she came from Bergen in Norway, on account of which she was seized in Russia and condemned. No repre- sentation was made of an intention to take false papers, and no leave was given for this purpose in the polic3% The sentence of condemnation in Russia proceeded upon the ground of a viola- tion of the law of nations. Lord Ellenborough said, ' I am bound to believe, that the ground alleged in the sentence of con- demnation is that upon which the seizure and confiscation proceeded. By this sentence the ship and cargo are condemn- T ^I""^^^"" ed for a breach of the law of nations, in carrying fabricated ton, 3 Camp, papers. The assured must be considered the efficient cause of 85, 15 East, the loss by an illegal act, for which no liberty was given in the ^^- po!icy.'(2) A neutral ship Insurance was made on goods on board of an American, then may carry q neutral, vessel, from New York to Havre ; France and Eng- eoods*^'^^" land being at war. The vessel was detained by an English l^rivateer and carried into Bristol, where a part of the cargo was condemned as French property. The expenses of this de- tenliou were chiimed of the underwriters, who resisted payment on the ground that the vessel's having enemy's goods on board was a l)rcach of an imj)lied condition of the policy. But the *- court held that a neutral vessel might lawfully transport the goods of either l)clligerent, and that there was no implied con- (3) Barker v. Jition of the contract of insurance, that the vessel had not such Blakcs, 9 III /o\ Fast 283 goofis on l)oard.(3) (2) Barker r. The neutral has a right to carry l)olligerent goods, or goods niakcs, fJ contraband of v/ar, and at the same time the other belligerent Last, 202 ; jj,^^ ,^ right to captin-e them. It has been intimated in some Ricliarflsori r. , " , .' i • • i i i /,\ rr>i • Maine F. Ai cases that these rights clash witli each other.(4) 1 nis cannot M. Ins. Co. c mean (hat thoy are inconsistent with each other, for it is Mas*. Kep. jmpossihlc thai two priii(ii)Ics of nationrd law should be so, and if two i)r(jjjo-5ilions are so, it follows that one of them at least is Sect. 3. JVational Character and Legal Conduct. 121 not law. The meaning is that the right of a neutral to trans- port the goods of either belligerent, is subject to the right of the other belligerent to capture and confiscate the goods, and for this purpose to detain the neutral vessel, if that be necessary to the exercise of the right. Mr. Justice Sewall says, ' The neutral character of the pro- Goods of a pertj is understood by the parties, and necessarily inferred, belligerent where the insurance is made by a citizen of a neutral state, re- ^g^j'^'^^j*^ ^^ sident there, of his own property ; and without any express re- presentation or warranty, the assured impliedly engages to pre- serve his property, and to conduct the voyage insured, in a neutral condition and character, to which alone the insurance applies. But where the insurance is of freight only, of a neutral vessel, it is not a necessary inference, nor is there any implied engagement, that the cargo carried in her shall be neutral ; for a neutral vessel may be lawfully employed in carrying a cargo which is the property of a belligerent.' But where the neutral owners of a vessel eflected insurance on freight, without disclos- ing any facts relating to the employment of the vessel, and the cargo on which the freight was to accrue belonged to subjects of the emperor of France, who was then at war, but it was shipped and disguised as the property of the supercargo, Avho was a neutral, this was held to be a violation of the implied war- ranty, that the vessel should be conducted in conformity to her neutral character.(l) (i) Stockerp. Decisions have already been cited, showing that the policy Merrimack does not imply a warranty that the goods insured, or carried in ^^^^^ ^^ the ship insured, are not contraband of war.(a) 220. (^a) JuheK'. Rhinelander, 2 Johns. Cas. 121 ; Rhinelanderr. Juhel, 2 Johns. Cas. 487; Seton v. Low, 1 Johns. Cas. 1 ; Skidmore v. Des- doity, 2 Johns. Cas. 77 ; Richardson v. Maine F. & M. Ins. Co. 6 Mass. Rep. 102. The circumstance of the goods being contraband is un- doubtedly 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 po- licy, 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, established in the colonies, con- sidered 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 in- sure, without any representation or specification in the policy, arti- cles which the foreign courts condemned as contraband, insurance would have afforded but a very imperfect indemnity against the pe- ril 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 repre- sentation of their contraband character, seem to admit of very serious doubL 16 122 Implied Warranties and Conditions. Chap. VI II. Implied war- ranty of the national cha- racter of the ship. (1) Price V. Bell, 1 East, 663. (2) Christie r. Secretan, 8 T. 11. 19«\ (3) Dawson r. Atty, 7 East, 387. (4) Bell V. Carstairs, 14 East, 393. (5) Brll r. Carstairs, 14 Easf, 374. The question has occurred, whether the policy implies a war- ranty that the vessel shall be documented and navigated accord- ing to laws, usages, and treaties of the country to which she be- longs.( 1 ) ] n a case of insurance of goods on board of the Peggy, of Georgetown, Lord Kenyon and Mr. Justice Grose intimated that there is some implied warranty as to the national charac- ter of the vessel, but Mr. Justice Lawrence dissented from this opinion. In this case, however, by the description of the ship as belonging to an American port, the policy seemed to intimate its national character.(2) Goods insured from Liverpool to Messina were on board of an American ship, which was captured by the Spaniards, and condemned in Spain, on the ground that she ' had no certificate of having on board no contraband of war, as recjuircd by the treaty between the United States and Spain.' Lord Ellenbo- rough said, ' As the ship was not represented to be American and there being no undertaking in the policy itself that she was American, there vv'as no necessity for her being documented as such. '(3) The same judge afterwards speaking of this opinion said, ' it was true with reference to a policy on goods ; in such case the assured was not liable to suffer on account of any de- fect in the documents belonging to the ship, with the procure- ment or existence of which he had no concern.'(4) A ship, freight, and part of the cargo, belonging to Americans, being insured in England, ' from Virginia to Holland or Germany, with leave to touch at or off Falmouth, and to take papers and clearances for any ])orts or places,' were captured by a French privateer off Plymouth and carried into Brehat. Both ship and cargo were condemned by the council of prizes at Paris, on the ground of the want of the documents required by the treaty between France and the United States. There was no repre- sentation or express warranty that the ship or cargo was Ameri- can. Lord Ellcnborough said, ' In a policy on the ship, whether there is a warranty or representation respecting the nation to which she belongs or not, as the assured is bound to have on board such documents as arc required by treaties with particu- lar nations, to evince his neutrality in respect to such nations; the want of them in the event of capture, and when the produc- tion of them becomes necessary, is most material. On the ground that the ship, goods, and freight, all of them belonging to nearly the same American proprietors, were condemned on account of the common default of all the proprietors in their joint character of ship-owners, in not having a regular passport on board as required by the treaty of their own state with France, we are of opinion that the assured cannot claim from the underwriters an iiidemniiy for a loss thus occasioned by themselves. '(.5) Where no express warranty or representation was made of the national character of the ship insured. Sir James Mansfield said, ' 1 think that the ship must be properly documented or she will never be safe. We fully agree with the case of Bell r. Sect. 3. JVational Character and Le^ral Conduct. 123 Carstairs, where the objection was the want of such a license as was required by the treoly with Spain.'(l) (i) Le Che- The Pennsylvania, an American and neutral ship, being in- minantr. sured from London to Riga, was seized on the voyage and car- famg^°"'/|".'^ ried into a Danish port and there condemned. One reason, nutt, 4Tauat. among others, assigned for the condemnation, was the insiiffi- 367. ciency of her documents. Sir James Mansfield said, ' It is stat- ed on the face of the sentence, that the v/ant of the sea-passport was a ground of condemnation. The ship is in the common case of an American ship, v» hich, therefore, ought to be docu- mented as a neutral ship. It is quite ridiculous to talk of this ship being an American, if she is not to be documented as an American ship.'(2) (2) Steel r. A case had previously occurred in New York involving this I-acy, 3 question. The policy was upon the cargo, but the opinion of T^""^** •~^^* the court is equally applicable to a policy upon the ship. Goods insured in 1797, from Curra^oa to New York, were captured and condemned by the French, a ground of condem- nation being that the vessel had not all the documents requisite to show her national character. There had been no express warranty or representation of the national character of the ship or goods. Chief Justice Kent, giving the opinion of the court, said, ' I very much doubt whether it be a part of the im- plied warranty of seaworthiness that the vessel shall have her proper documents on board. There is no case that g03S to that length. These documents arc only material where the national character of the vessel is warranted or represented. The sea- letter, and other documents, could only have been requisite to protect the vessel as a neutral, but it was no part of the contract that she was to sail in that character. A vessel may be compe- tent to perform the voyage insured without the possession of these documents ; and although v/e do not profess to declare a very strong opinion on this point, we are inclined to think that (5) T.M'm^ v. the want of those documents could not have furnished to the un- Scott,2John3. derwriters a valid defence against the policy.'(3) ^ " Although there is some apparent inconsistency among the pre- Result of the ceding opinions, they seem, on the Avhole, pretty satisfactorily preceding to establish the principle, that the insurers of the ship are not liable for any loss occasioned by the want of documents, requir- ed by the laws and treaties of the country of which it bears the national character, or by the want of the documents and means of protection, which usually accompany ships of the same na- tional character. In regard to the distinction made by Lord Ellenborough, be- v tween a policy on the ship and one on the cargo ; there seems to be precisely the same reason for making the assured on goods, answerable for this neglect of the owners of the vessel to fur- nish her with documents, that there is for holding him to be an- swerable for the seaworthiness of the vessel, though there is no fault or neglect on his part. But whether it Avould be expedient to hold him so stricdy answerable for the seaworthiness of the 124 Express Warranties and Conditions. Chap. IX. ship, might perhaps admit of some doubt, had not the principle been so long established and so uniformly maintained. Effect of a In regard to the effect of a non-compliance with this implied non-comph- agreement or condition respecting the documents of the ship, ance with the ° i ,i i * r ^u i • • r ■. x u 1 implied war- ^"" ^"^ conduct 01 the assured m navigatmg it, courts have not ranty of na- considered it as incurring a forfeiture of the contract. As far as tionai charac- the assured induces any unusual and unnecessary risk, it is held ter and legal ^j^^j. j^g must bear the consequent loss, but his contract is not ne- cessarily made void. If the risks insured against are not en- hanced or changed, the insurers still remain liable for them. The master The captain of a vessel insured, had, through accident, left his leaves his passport at the Isle of France. The ship was captured and passport. carried into Columbo in 1805, where she was condemned as be- ing employed in an unlawful trade, but the decree of condem- nation was reversed on appeal. There was no warranty or re- presentation of the national character of the vessel. Mr. Jus- tice Sedgwick, giving the opinion of the court, said, ' It was ow- ing solely to the negligence of the master that the papers were left at the Isle of France ; if that zcas the cause of the loss, the underwriters are not responsible. The principle of an implied warranty on the part of the assured, that every thing shall be done to prevent a loss, pervades the whole subject of marine in- (1) Cleveland surance.'(l) But it is implicitly admitted in this case, that if the V. Un. Ins. Joss was occasioned by any cause other than the want of the Rep 322. ' passport, and if it appeared that the want of the passport could not have contributed to the loss, the insurers remained liable. It is not intimated that the absence of this document necessarily put an end to the contract. Speaking of the documents required by treaties to show the national character of the ship. Lord Ellenborough, giving the opinion of the court, said, '-In respect to a ship which is not the object either of representation or warranty, the existence of such papers at the commencement of the voyage, or the Avant of (?^ ^ ?\''\4 them at any other time or for any other purpose, except in the East 393 event of capture, and when the production of them becomes ne- 394. cessary, is immaterial.X2) CHAPTER IX. EXPRESS WARRANTIES AND CONDITIONS. Section 1. What constitutes an Express Warranty. A.N express warranty is an agreement expressed in the po- licy, whfrrl)y the assured stipulates that certain facts relating to the risk are, or shall be, true, or certain acts relating to the same Sect. 1. Tyjiat Constitutes an Express Warranty. 125 subject have been, or shall be, done. It is not requisite that (i) Newcas- the circumstance or act warranted should be material to the ti« F. Ins. risk : in this respect an express warranty is distinguished from ^°- *'• ^^^^' • r 1 T-ii 1 , 1 ■ r • • 1 • ii- morran, J a representation. Lord Eldon says, ' It is a nrst prmciple m the d^^^ 262. law of insurance, that if there is a warranty, it is a part of the (2) Dennis v. contract that the matter is such as it is represented to be. The ^udlow, 2 ^ materiality or immateriality signifies nothing. The only qucs- ^^^1"'. Stu-' tion is as to the mere fact.'(l) part, Doug. An express warranty or condition is always a part of the po- 11 ; Kenyon licy, but, like any other part of the express contract, may be ^^^,^""^'{2? n. written in the margin,(2) or contained in proposals or documents ^2) Routledge expressly referred to in the policy, and so made a part of it.(3) r.Burrell,! H. An insurance of goods was described in the policy to be made B. 254 ; ' for account of John Mackay, of Boston.' Mr. Justice Rad- ^vw,'^? T. cliff said, ^ The insurance being for account of John Mackay, r. 710. of Boston, I consider equivalent to a representation that he was 11 1 • ^ r 1 • 1 /-i. TT 1, • Insurance for owner, and that the msurance was lor his beneht. He being an account of J. American, and residing at Boston, and so known to the parties M. of B. is a at the time of effecting the policy, the insurance is clearly to be warranty. considered as made on American or neutral property.' The (4) Kemble v. court put the same construction upon the policy as if the cargo Rhineiander, had been warranted neutral.(4) 13^0°^"'' ^^^' A warranty is often made by saying expressly in the policy that the assured warrants such a fact. But a formal expression It is not ne- of this sort is not requisite to constitute a warranty. Any di- Ji^g^^^^^^^" "^^ rect, or even incidental allegation of a fact relating to the risk, has u,arrant^ or been held to constitute a warranty. If insurance he made on any formal ex- 'the Swedish brig Sophia,' 'the American ship Minerva,' 'the pression. Spanish brig New Constitution,' &c. or on goods on board of vessels so described, it is a warranty that the vessel is Swedish, American, or Spanish, according to such description, and is equivalent to a formal provision that the assured warrants the vessel to be of a particular national character.(«) But describing the vessel in the policy by an English name, is not a warranty of its having an English national character.(5) (5) ciapham Doubts were entertained by the judges in Pennsylvania, whether ''• Coiogan, 3 insurance 'on the good British brig called the John,' was ne- Camp. 382. cessarily a warranty of the national character of the vessel. Whether these words would amount to a warranty, and what con- struction was to be put upon them. Judges Yeates and Bracken- ridge thought would depend, not only upon the words themselves, and manner and connexion 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 na- tional character, because the risks insured against could not be af- fected by the fact that the vessel was British, since she Avas in- (a) Lewis v. Thatcher, 15 Mass. Rep. 431 ; Higgins v. Livermore, 14 Mass. Rep. 106 ; Atherton v. Brown, 12 Mass. Rep. 152 ; Lothiaa V. Henderson, 3 B. & P. 499 ; Barker v. Phoen. Ins. Co. 8 Johns. 237 ; Goix i'. Low, 1 Johns. Cas. 341 ; Murray v. Unit. Ins. Co. 2 Johns. Cas. 168: Vandenheuvel v. Un. Ins. Co. 2 Johns. Cas. 127. 126 Express Warranties and Conditions. Chap. IX. (1) Mackier. Pleasants, 2 Bin. 363. A warranty relates to the risk. (2) Kenyon v. Berthon, Doug. 12. n. ' Warranted the property of the assured, all Amtri- (3) .lenks r. Hallett, 1 Cauies, GO. (4) Delongue- raere r. N. Y. Firem. Ins. Co. 10 Johns. 120. On the cargo beins' ■\vnic. (5) Mullcr I'. ThompHon, 2 Camp. GIO. Wurrnnled free from ave- raf^R i:c. is not a war- ranty. sured against sea-risks only ; and the risk was to end on cap- ture.(l) This distinction seems to be just; for though the ma- teriality of the fact stated in the poUcy is not requisite to con- stitute a warranty, yet there seems to be no reason for consider- ing the allegation of a fact to be a warranty, 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 unquestionably that it can have no such rela- tion. Thus if it could be 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 de- scription 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 v>'ould be less upon an American or French vessel. But if the national character of the vessel could not possibly, in the opinion of any man, have any relation to the sea-risk, there seems to be no reason for considering it a Avar- ranty. This distinction can apply however only to facts inci- dentally expressed, for if the parties use the formal expression of a warranty, no question of this sort can arise. But since most facts alleged in a policy may be supposed to have some relation to the risk, in the minds of the parties, they are generally construed to be warranties. Where it was stated in the policy that the vessel was in port on a certain day, it was held to be a warranty of that fact. (2) A policy was made on goods ' warranted the property of the assured, all Americans.' This was held to be a warranty that the property was neutral, as the United States were neutral at the time when the policy Avas effected. (3) The insurance of goods to a certain port^ as to ^ port Sisal,' is not a warranty that the place has any port or harbour belong- ing to it. The meaning of the expression is to be determined by the fact, with v/hich the underwriter is supposed to be ac- rjuainted.(4) W here (he policy was expressed to be ' on the cargo, being 1031 hogsheads of wine,' the cargo consisted of the wine insur- ed, and also'eight cases of British manufactured goods. In be- half of the underwriters it was contended that this should be considered a warranty that the whole cargo consisted of the wine insured. Lord ]'^llcnl)orough said, '1 think the cargo does not mean the rcliolc 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. '(5) As any statement of a fact in the ])olicy is a warranty, though neither the word rvarranl, nor any formal expi'cssion of like im- port is used ; so there is frecjuently a warranty in form, where there is none in fact. The assured often uarranls the propei-ty free from average, free from detention or capture, or from other losses and ])ei-ils, which is no more than an agreement that those shall not be among the perils and losses insured against, and for Sect. 2. Compliance with an Express Warranty. 127 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 construc- tion, since, in the case of an insurance free from average^ for in- stance, it would be adopting the doctrine that the occurrence of an average loss would render the policy void, and consequently that the happening of a loss, which is not insured against, de- prives the assured of the right to recover for one that is insured against. Section 2. Compliance with an Express Warranty, It is another distinction of an express warranty or condition a warranty from a representation, that a warranty must be strictly and, it is must be strict- even said, literally^ complied with; whereas it is sufficient that a ^j^^j^"^^^'^'^ representation is complied with equitably and substantially. It is held that the intention of the parties in a warranty, except as to the meaning of the words used, is not to be inquired into ; the assured has chosen to rest his claims against the insurers on a con- dition inserted in the contract, and whether the fact or engage- ment, 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 Avarranties, in this particular, has perhaps arisen, in part, from the maxim of the common law, (i) Pawson v. that conditions are to be severely construed in regard to the Watson, party imposing them on himself. ' A warranty,' says Lord Mans- /^^'^{Jf,^' field, ' must be strictly performed, nothing tantamount will do.'(l) hurst r. Cock- Mr. Justice Duller says, ' It is a matter of indifference whether the ell, 3 T. R. thing warranted be material or not, but it must be literally com- ^^^• plied with ;*(2) and Mr. Justice Ashhurst says, ' The very meaning ^^ Hartley i of a warranty is, to preclude all questions whether it has been T. R. 343'; 2 substantially complied with; it must be literally.\3) T. R. I86. A non-compliance with a warranty, though it occasions no da- Non-compH- mage and does not change or increase the risk, has the effect of f"^*^ avoids • . . .... Xna T)Oiirv discharging the insurers from their liability.(4) though no It has been held that a temporary non-compliance with a war- damage en- ranty by a defect, which is remedied before any loss happens, sues from that still discharges the underwriters. It was warranted, that the ^^"^^• vessel sailed v.ith an armament and ' fifty hands or upwards ;' palker^oE she had sailed, with only forty-six hands, from Liverpool to 615; 7T. r! Anglesea, where she took on board others to make up the num- "705 ; Wool- ber warranted, and when afterwards captured, while prosecut- °^'" ^- ^J^"'l- 1 111 1 1 r r 11 rni • man, 3 Burr, ing her voyage, she had on board hlty-tAvo hands. I he jury ]4i9. Fernan- found that the vessel was as safe from Liverpool to Anglesea des v. Da with forty -six, as she would have been with fifty-two hands. But ^°i^^i Park, Lord Mansfield said, ' A representation may be equitably and Hqu'-^^^^'' substantially answered, but a warranty must be strictly com- worth ~7 T. plied wuth. It is a condition, and unless performed, there is no R- 156. contract. The contract does not exist, unless it be literallj^ com- (5)peHahn pHed with.'(5) T. r!'343 1 \ 2 T. R. 186. 128 Express Warranties and Conditions. Chap. IX. (1) Newcas- tle Fire Ins. Co. V. Mac- morran, 3 Dow, 255. The same compliance may satisfy a warranty or representa- tion. (2) Vanden- heuvel v. Church, 2 Johns. Cas. 173. n. The meaning of the words used in a war- ranty are de- termined as in other cases. (3) Bean v. Stupart, Douij. 11. The rule as to a strict com- pliance may operate against the in- surers. (4) Kerable r. Jthinelander, 3 Johns. Cas. 134. (5) Hyde r. Bruce, Marsh. 347. Whether a warranty made inciden- tally is suh- jcct to the same con- • tructioii as one inaile for- mally. In a policy upon a cotton mill, it was ' warranted that the mill was conformable to the first class of cotton and woollen rates.' According to the proposals of the company, buildings of the first rate of risks, were those having ' stoves or coakles, stand- ing at a distance of not more than one foot from the wall ;' those having stove-pipes or flues of more than two feet in length were considered to belong to the second class of risks. At the time of making the policy the building was not of the first class, but had been altered so as to conform to that class, before the loss took place. Lord Eldon said, ' If the mill was warranted as being of the first class, it must be such as it was warranted to be, otherwise there is no contract.'(l) Where an equitable and substantial fulfilment is the same as a strict and literal one, a representation and warranty are equiva- lent to each other ; as was held in New York to be the case of a representation or warranty of the neutral character of pro- perty.(2) Though a strict compliance with a warranty is required, yet the construction of the words is determined, as in other cases, by usage and common acceptation. Where the warranty was that the vessel had ' 30 seamen' on board, and to make up the number it was necessary to include the steward, cook, surgeon, some boys and apprentices ; Lord Mansfield said, ' the question was whether, in this warranty, 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 reck- oned 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 strict- ly so called.' And it was held that the warranty had been complied with. (3) Mr. Justice Kent said, ' A warranty must be literally com- plied with, but this strict compliance ought to operate in favour of, as well as against, the assured, whenever he can bring him- self within the terms of it. '(4) An instance of this occurred in the case of a warranty that ' the ship should have twenty guns.' She had in fact tAventy-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 rccovcr.'(6) In a case decided in New York a distinction was taken bj I\Ir. Justice Lewis between a formal warranty of a fact, and the incidental stntement of it in connexion with the description of the subject. 'J'iie policy was on ' the Anicj'ican shij) Minerva 5' he said the words were not in the fi)rm used for a warranty but Avere only description, and thrrrforc to he taken iihcrally. But the other judges thought the ' construction, that every descrip- tion, importing a designation of the condition of the thing insur- ed, as distinguished from, and added to, its mere identification, fcliould be decnicd a warranty, would perhaps be more conform- Sect. 2. Compliance with an Express Warranty. 129 able to the scope of the authorities on this subject.' And they were of opinion that a warranty, whether expressed in one form or another, should be subject to the same rules of construe- , , ^ . ♦ • /lN 0) GOIX V. "On-U; .-in 1 Low, iJohns. This strictness in construmg the statements mcidentally made cas. 341. in the policy, does not prevail to the same extent universally in other countries. 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 Avas, since they might have been led by the description to form too favourable an estimate of the ,2) 1 Emer. risk, but if they were acquainted with the vessel, they will be c. 6. s. 3. bound by the contract. He says, if the vessel be superiour or •'^ee also equivalent to what it is described to be, the conditions of the "* contract will be satisfied.(2) A compliance with a warranty or any other agreement is dis- jncr^cTrnpii-" pepscd with, if it be rendered unlawful by a law enacted after an'ce unlaw- the time of making the policy.(3) But if a compliance be un- fui excuses a lawful at the time of making the policy, the contract will be non-comph- void ; for, as we have seen, whenever an essential part of the ,„. t^, , ^ contract, such as an express warranty is considered to be, is [,_ Kitdreir"^ unlavvful, it has the effect of defeating the contract. Lord Raym. It has, in one case, been specifically decided that a non- 371. S.C; compliance with a warranty will not discharge the insurers, ggg^jj^ where it is occasioned by the direct operation of some one of the 1 Emer. 543. perils insured against. (4) Suppose a ship, insured against arrests c. 12. s. 31. and detention, and warranted to sail on or before a certain day, q^^^ ^f ^ to be prevented from sailing by an arrest and detention. (5) The compliance embargo or other cause of detention, may be removed before being pre- the assured has intellio;ence of it, Avhich will take away his right ^'^^}fy- y ^ f 1 1 • 1 1^- ■ r . 11 TT- • "^ -n peril insured 01 abandonmg and clamimg tor a total loss. His msurance will an-ainst. therefore be defeated, unless a literal fulfilment of the warranty is dispensed with, in case of the non-compliance being occasion- ^"^-1?^^^.*;!°'^*^ ed by some of the perils insured against. It will subsequently qi r. 277.' appear that a deviation from the ordinary course of the voyage (5) See Cruik- is justified, where it is occasioned by the operation of some of shank t\ Jan- the perils assumed by the underwriters, which seems to be an qq" ' ^ iaunt. analogous case. A warranty has been defined to be a condition precedent, but whether a the definition seems to be applicable only to a warranty relating non-compii- to the commencement of the risk. If it relates to a circum- ^"'^'^ ^'^'^ ^ stance necessarily subsequent to the commencement of the risk, ^ retrospect- as that the ship shall take on board an armament at an intcrme- ive operation, diate port in the course of the voyage, it can hardly be consid- ered a liberal construction of the contract, to hold that the as- sured is not entitled to recover for an antecedent loss, though the warranty should not be complied with, in a case free from all imputation of fraud. The premium is unquestionably due in this case,(6) which affords some ground of inference that a pre- (6) Hendricks vious loss might be recovered, since it supposes a valid contract r. Com. lus. to have subsisted, at some time, between the parties. There is Co. 8 Johns. l. no question that the insurers are liable for a total loss accruing 17 130 Express Warranties and Conditions. Chap. IX. (1) Cruik- previously to the time to -which the warranty relates,(l) and shank t^ Jan- there seems to be the same reason for holding them liable to son, 2 launt. .• i i ] ^i • ° 3Ql_ pay a partial loss under the same circumstances. The same observations apply to a warranty relating to the whole period of the risk, as, that the property is neutral, or that the ship shall have a certain number of men and guns. If the warranty is complied with for a time, during which a loss hap- pens, and subsequently a violation of the warranty takes place, there being however no fraud on the part of the assured ; it seems to be equitable at least, that he should be entitled to re- cover for this loss. 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 (2) 3 Mass. loss actually takes place ;(2) but it does not appear upon what Rep. 337. 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 war- ranty of seaworthiness, might be recovered notwithstanding such forfeiture, but he did not distinctly express an opinion in regard to the right of recovering, subsequently to a forfeiture of (3) Taylor v. an express warranty, for an antecedent loss.(3) Lowell, 3 Mass Rep. 347. . Section 3. Time of Soiling. Under a warranty that the vessel sailed or will sail on or be- fore a certain day, a question arises in regard to what consti- tutes a sailing on the voyage. A vessel has sailed the moment she is unmoored and got under weigh, in complete preparation for the voyage, with the 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 contemplation of the captain, at absolute and entire liberty to proceed to her port of delivery in f 1) Thelins- ^ mathematical line, if it were possiblc.'(4) Uoutj. 306.".' A ship insured 'at and from .lamaica 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 177C,' was ready to sail and Would have sailed on the 25th of that month, had she not been detained by an embargo laid (5) Ilore V. by the order of the governor of Jamaica, which was not Whitmorc, raised until after the time when the ship was warranted to sail. Cowp. 7a4. rj,j^^ warranty was held to be violated. (3) A compliance with the warranty was prevented by a peril not insured against. Th" nhip sails A Vessel, warranted to sail on the same voyae;e on or before •wiihiii tho the first of August, with a stipulation for a return of premium *'"'.'• ■''"' for convoy, proceeded on the 2Gth of July, from St. Anne's, in waits for con- , . V t^i /- i i • .1 • 1 1 r .u r voyatasui)- Jamaica, for liluelields, in the same island, tor the purpose 01 sfqiirrif iK)rt jfjining convoy at IJlueficlds. The convoy was ready to sail, iii.iil after Uk: |„,|^ y^,.^^ detained by an embargo until after the first of August, lim.: warrant- j[>i^j^.|',^.ij3 ^^.^^ ,^,^^ ^^j^ ^l^^, (-ounse from St. Anne's to London. Sect. 3. Time of Sailing. 131 Lord Mansfield said, ' Wc are satisfied that the voyage from Jamaica to England began at St. Anne's ; the vessel sailed from St. Anne's to England by the way of Blueficlds. If she had gone to Bluefields, for any purpose independent of the voyage to England, to take in water or letters, or to wait in hopes of convoy coming there, none being ready, that would have given it the condition of one voyage from St. Anne's to Bluefields, and another from Bluefields to England. Here she had no other object than to come to England directly by the safest course.'(l) Ci) Bond v. A ship insured for the same voyage was ' warranted to sail ^"**' ^*^^^J'' from Jamaica on or before the first of August.' The ship hav- see.'n. °' ing taken in her whole lading and papers, sailed, on the first of August, from Savannah La Mar, in Jamaica, to Bluefields, the rendezvous for convoy. On the 25th of July an embargo had been laid by the governor of Jamaica on all ships in the island, which was not taken off until the 9th of August. As soon as the ship had crossed the bar in going out of the har- bour of Savannah La Mar, on the first of August, the captain returned to the shore in a boat, and made a protest against losses and damages sustained, or to be sustained, on account of the embargo, which he could not have made at Bluefields. He proceeded the same day to Bluefields, whence the ship did not sail until the 9th of August, when the embargo was taken ojff. The captain knew of the embargo before he sailed from Savan- nah Tja Mar, but supposed it to be intended merely to prevent vessels from sailing without convoy, and that it Avould be taken off on his arriving at Bluefields, where he expected to find the convoy. The convoy did not arrive, however, until the 9th of August. Lord Mansfield said, 'Whether this was a bona fide sailing on the first of August, or not, depends on the credit of the captain. He positively swore that he expected to find con- voy ready at Bluefields that day, in which case the embargo would have ceased immediately.' Buller, J. said, ' If the cap- tain had expected and meant to wait for convoj^, it would not have been a sailing on the voyage.' Lord Mansfield and Jus- tices Ashhurst and Buller were in favour of supporting the verdict of the jury for the assured. Willes J. dissented from their opinion. He said, ' It appears to me that the captain did not mean a sailing on the voyage. If he had intended to proceed directly, he had no occasion to quit his ship in order to make the protest.'('2) This case turns wholly upon the captain's sup- (2) Earle v. posing himself to be at liberty to proceed on the voyage when i;™"'^' "S- he got under Avcigh on the first of August, at Savannah La Mar. But he knew of the embargo. The case therefore rests upon the principle, that if the captain sails, knowing of an impediment to his proceeding, which he expects will be seasonably re- moved, but is mistaken in this expectation and hindered by the impediment from proceeding on the voyage within the time warranted, still this is a sailing within the time, and a compli- ance with the warranty. This case certainly comes very near to being inconsistent with the preceding. It does not appear 132 Express Warranties and Conditions. Chap. IX. The ship sails with the in- tention of stopping at another port in the island from -which she is war- ranted to sail. (1) Thellus- son 7'. Fergus- son, Douy. 361; Thel- luison r. Sta- ples, Doug. 366. n. Warranty to sail after a certain time. (2) Cruik- shank v. Jan- son, 2 Taunt. 301. See al- so Vezian v. (J rant, I'ark, 485. Warranty to sail from an inland port. The jK.rt of London. (3) Park, '107. whether the court considered the peril of the embargo to be covered by the poHcy. A French ship, insured at and from Guadaloupe to Havre, was 'warranted to sail on or before the 31st of December.' She sailed from Point a Pitre, in Guadaloupe, on the 24th of Oc- tober, with an order, however, upon the role (Veqwipage, or mus- ter-roll, that the captain should stop at Basseterre, the residence of the governor in the same island, to receive despatches for the government. Basseterre was in the course of the voyage, and the ship would have passed under the guns of the fort at that place, if the captain had received no orders in regard to touching there. He sailed from Point a Pitre with the intention of stop- ping at Basseterre, where he understood that he was ordered to touch for the purpose of joining convoy and taking public de- spatches, but he did not expect to be detained there. He was, however, detained at Basseterre until the 10th of January, when he proceeded on the voyage with convoy, which arrived at Basseterre after the 31st of December. The ship was cap- tured in the course of the voyage by an English vessel. It was taken for granted that unless the departure from Point a Pitre, under these circumstances, was a sailing within the terms of the policy, the warranty had not been complied with. Lord Mans- field said, ' The ship could not sail from any part of the 'island Avithout the governor's leave. But the captain, v.hen he left Point a Pitre, expected to meet with convoy at Basseterre, and proceed immediately without interruption.' Buller J. said, ' There must be a bona Jide sailing, which I think there was in this case."" It was accordingly held that the warranty had been complied with ; and Mr. Justice Willes, who dissented from the opinion of the other judges in the preceding case, concurred with them in this.(l) A ship was insured ' at and from Jamaica, Avarranted to sail after the 12th day of January.' Before that day, the vessel, being completely loaded, sailed from Port Maria, a hazardous station for ships in that island, for Port Antonio, in the same island, the accustomed rendezvous for convoy, for which it Avas proposed there to wait. She was lost in this passage, and it was objected, in behalf of the insurers, that this was a sailing before the 12lh of January; but the court held that the warranty had not been violated. They considered the departure from Port Mai'ia not to be a sailing within the meaning of the Avarran- ty.(i') Questions have arisen under the Avarranty in regard to Avhat is a .srnV/ng from an inland port. It has been maintained, though not to my knowledge judicially decided, that the port of Lon- don extends to Gravesend, and that a vessel has not sailed from the ))ort of London, until the time of her departure from Graves- cockct, Avliifh is the last [>a})er of clearance, is obtained at that place. (3) 'J'his ()])ini()n has beiMi confii'ined by a decision on a license per- miltiiig the exportation of goods from the port of London be- Sect. 3. Time of Sailing. 133 fore the 10th of September. The vessel cleared out at London (i) Williams on the 9th, and at Gravcsend on the 12th of that month. The ''• Marshall, 2 court held that this was not an exportation within the terms of ^""^{^,^^6^' the license.(l) 1G2. A vessel was insured from Savannah, and warranted to have Warranty to ' sailed early in October.' She had cleared out at the custom sail from Sa- house on the 15th of September, and dropped down the river vannah. about three miles to Five Fathom Hole, and afterwards about eleven miles to Cockspur, at both which places vessels of heavy burthen 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 first of October. Chief Justice Kent said, ' The inception of the voy- age by sailing must depend on the quo animo or bona fide, intent. It is very clear the voyage did not commence till the vessel left Cockspur. She left the port of Savannah for a temporary pur- [fu^jjo^^g ^' pose, distinct from the object of the voyage. I have no doubt the Caiues, ill. sailing in the policy meant the going to sea from Cockspur.'(2) A policy was made on goods and freight, at and from Pont- Warranty to neuf on the river St. Lawrence, to London, with a warranty ' to ^^'^ ^'■°™ sail on or before the 28th of October.' Pont-ncuf is about thir- ty miles above Quebec. It has no custom house, and vessels go- ing to sea from thence, clear out 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 eve- ning of the 28th. The captain had gone down to Quebec be- fore, 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 30th, not having been able to obtain a pilot on the preceding day. Lord EUenborough said, ' The policy contemplated a saiHng upon the voyage ; the ship's drop- ping down from Pont-neuf to Quebec, without her complement of men, showed that that was only preparatory to the voyage. " Warranty to sail on such a day," must mean to sail on the voy- age, that is, when the ship could get her clearances, and sail .c^. Rjsdale equipped for the voyage.'(3) And accordingly this was held not jvewnham, 3* to be a sailing, on or before the 28th of October, within the M. & S. 45ff. meaning of the warranty. If a vessel is insured from different ports, the warranty of the Insurance time of sailing will have reference to the last port of lading. ^""^^ wur*^*^* Freight was insured ' from Surinam and all or any of the W. I. -warranty of Islands to London,' and the ship was ' warranted to sail on or time of sail- before the first of August.' She sailed on that day from Suri- "^S- nam Avith a full cargo, and on the fourth put into Tortola for convoy. The court considered that the sailing on the first of August from the last port of lading satisfied the warranty, and that the introduction of ' all or any of the W. I. Islands,'' was for the benefit of the assured. (4) mn Wrie-ht r. But if a ship is warranted to sail from one port, with liber- Shiffner, ii ty to touch at another, the sailing from that other within the East, 515 -, 2 time warranted, has been held not to satisfy the warranty. The ^^^P- -^ • 134 Express Warranties and Conditions. Chap. IX. (1) Vezian r. Grant, Park, 485. Departure is different from sailing. (2) Moir r. , Koy. Ex. Ass Co. 1 Marsh. Rep. 576. S. C. 6 Taunt. 241 ; 3 M. &; S. 461 ; 4 Camp. 84. (3) 13 Car. H. itat. I.e. 9. (4) 22 Geo. II. c. 33. s. 2. (5) 38 Geo. HI. c. 76. (6) 43 Geo. III. c. 57. See Long v. DufT, and Long V. IJol- ton, 2 U. ii 1'. 2uy. ship was insured ' at and from Martinico, with liberty to touch at Guadaloupe, warranted to sail after the 12th of January.' She sailed from Martinico to Guadaloupe before the 12th of Jan- uary, and proceeded from GuadaloujDC on the voyage insured, after the 12th of January, without putting into Martinico, as was intended, if a full cargo had not been obtained at Guadaloupe. Mr. Justice Buller thought this was not a compliance with the warranty.(l) A distinction has been made between a warranty to sail, and a warranty to depart. Insurance was made on the ship Ncptunus, at and from Memel to England, ' warranted to depart on or be- fore the loth of September.' The vessel, with her clearances and cargo on board, and being completely ready for the voy- age, hove up her anchor and got under weigh on the 9th of September, with the intention of proceeding to England, there being at the time some prospect of favourable weather. Before she had been half an hour under weigh the weather changed, and she was obliged to come to anchor at the HafF or river- mouth, Avithin the distance of a half of a mile from the sea, Avhere she lay, with above thirty other ships, until the first op- portunity for sailing, which was on the 21st of September. Chief Justice Gibbs said, ' If this warranty had been that the vessel should sail on or before the 15th of September, I should have thought most clearly that she had sailed. The warranty to sail means that she shall commence her voyage, and in the present case the ship was under weigh and in the prosecu- tion of her voyage, before the time prescribed. The decisions hitherto have been, that when a vessel got under weigh the war- ranty was complied with. But I think the word depart Avill not bear that construction, but must mean a departure from the port of Memel.' Dallas, J. ' I am of opinion that there is a distinc- tion between sailing and departing.\'2,) Section 4. Convoy. Another express warranty that frequently appears in English policies is that of convoy. Several laws have been enacted in Great Britain on this subject. In 1G61 a law was passed pre- scribing to the olhcers of the public armed ships, their duty in convoying merchaiumcn in time of war.(3) A similar act was again passed in 1749.(4) And by an act of 1798,(5) con- tinued in 1003,(G)all vessels having a British register, with some exceptions enumerated in the statute, are forbidden to sail with- out convoy, in time of war, under the penalty, among others, of forfeiting the insurance. In the United States there is no simi- lar law, and as convoy has rarely been ])rovidcd by govern- ment, and has been in very little use, this warranty docs not ap- |)r;ir in American policies, and should it hereafter be introduced, it will no donbt be under laws and usages dillerent from those of Great Britain. Sect. 5. JVeutral Property. Ownership. 135 It was long ago decided that this Avarranty was complied with by taking such convoy as was provided by the government for vessels bound on the voyage insured, and if convoy was usually furnished for only a part of the voyage, it was no breach of the warranty to perform the remainder without any con- voy.(a) Warranty to sail with convoy, or which is the same in this re- spect, to depart with convoy, is a warranty to take convoy for the Avhole voyage, or for that part of it for which convoy is usually supplied by the government.(]) C|n Lniy j,. The vessel must not only sail with the convoy,(2) but the cap- Ewer, Doug, tain must also, either before, or at the time of sailing, take sailing '^^^ orders, or directions as to keeping with the convoy, obeying ^^oo^j^egT ^' signals and the like, from the commander of the convoy, except, Park, 5io! perhaps, where he is unavoidably prevented, without any fault (3) Webb v. on his part, from receiving such orders, in which case he must «'^^°p*^r"' ^ take the earliest opportunity of obtaining them.(3) Victorin r! But if the vessel cannot sail fast enough to keep with the con- Cleeve, 2 Str. voy, or be parted by a storm or other inevitable accident, it is 1230; Ander- not a breach of the warranty.(4) 2^*6 \ p'^^ieT- 3 Esp. 124 ; Waltham v. Section 5. JVeutral Property. Ownership. Mar^i^'^Re ^ 376 ; Verdon A warranty that the ship or goods are neutral^ or neutral pro- i'- Wiimot, perty^k an engagement on the part of the assured, that it is own- Ff^^'^^^' "* ed by persons resident in a country at peace wl^en the risk be- ,,, Q■^g^ " gins, and who have the commercial character of subjects of Marsh. 367; such country, and that it shall be accompanied with such docu- ^imondr. ments, and shall be so managed and conducted by the assured Dou/268- and their agents, as to be entitled, as far as depends on them, to Jefferies v.' all the protection and privileges of property belonging to the Legendra, 4 subjects of such country. And so a warranty that the property ^°^" ^j^ ^ is Dutch or American, or of any particular national character, is an engagement that it is owned by persons having the com- mercial character of Dutchmen 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 pro- perty insured is warranted to be American, at a time when the United States are at peace, it is precisely the same as a war- ranty of neutrality, and these two forms of warranting are used indifferently for the same purpose. A statement of tjie fact that the property is neutral, whether How this war incidentally or directly, whether as a part of the description of ranty may be made, (a) Bond v. Gonsales, 2 Salk. 445 ; Smith v. Readshaw, Park, 510 ; Hibbert v. Pigou, Park, 498 ; Gordon v. Morley, 2 Str. 1265 ; Le- thulier's case, Salk. 443; D''E2:nino v. Bewicke, 2 H. Bl. 551 ; Aud- ley V. Duff, 2 B. & P. Ill; ^Everard v. HoUingsworth, 2 B. & P. 111. n. ; Campbell v. Bourdieu, 2 Str. 1265; De Garey v. Clagget, Park, 511 ; Warwick v. Scott, 4 Camp. 62. 136 Express Warranties and Conditions. Chap. IX. the property, or in the form of warranting, will equally consti- tute a warranty. So the warranty of a fact necessarily imply- ing the neutral or national character of the property, will have the same construction as a formal and direct warranty to this . 5,. , , effect. Where a policy effected in the United States contained Rhinelander ^^e following note ; ' jV. 5. The vessel sails under a sea-letter ;' it 1 Johns. 192. was held to be a warranty of American property.(l) Property war- It has already appeared that the national character of any ranted neutral person, for all commercial purposes, depends upon his domicil, must be own- j^j^j j^g jg taken to have the commercial character of the nation tralsf °^"' where he has his residence.(2) What has been said in regard , c; 29 '•^ national character, is applicable to the present subject, &seq. * but need not be repeated. If property be insured as belonging (3) Skin. 327. to the subjects of any particular country, as Hamburghers, If the -war- which is owned by the subjects of another, as Frenchmen,(3) ranty be falsi- or if it be warranted to belong to neutrals, when it is owned by rtTf^th^ belligerents, the insurers are not bound by their subscription, property this A falsification of the warrants, in regard to a part of the pro- defeats the perty insured, will defeat the policy as to the whole. (4) contract. Where the assured being neutrals were part-owners of goods, (4) Calbraith (\^q other part-owncr being a belligerent, and the policy was in- Condv^r' tended to cover only the interest of the neutral part-owners, Marsh. 388. Chief Justice Marshall said, ' The assured are not understood to n. ; Goold r. warrant that the whole cargo is neutral, but that the interest in- Unit.Ins.Co. g^jj.^j jg neutral.'(5) (5) Liviii'^ston A vcsscl warranted American had been conveyed by John r. Maryl. Ins. Bazing, an Amgrican, to Murray and Hart, Americans also, by €0. 6 Cranch, ^ ]-)j|j ^f gg^jg absolute in its terms, but in fact in trust for Na- thaniel Bailey, of Jamaica, a British subject and belligerent, as Property held security for a debt due to him from Bazing ; it was held that belligerent. the warranty was not complied with. Mr. Justice Radcliff" said, ' A warranty of neutrality requires that the property should be (6) Murray r. Avholly neutral. ]( one of the belligerents had an interest, o^TV '"~ini°" whether partial or entire, the risk was thereby increased, and the warranty not complied with. '(6) Property sold During a war between France and England, an agreement by a neutral ■^ya,s made by an American for a sale of goods to Frenchmen, ren^t to be^dc- ^° ^^ delivered at St. Vallery, in France, but the goods were to livered in the be at thc risk of the vender until delivered. Under this agree- bellii,'ereat ment the goods were shipped and insured with a warranty that country. ^j^^y were American. It was the opinion of the cotu't in New York that the warranty was complied with, from which, how- (7) Ludlow r. ever, Mr. Justice Kent dissented.(7) So if goods be contracted Howiio, 1 for with a belligerent to he delivered to a neutral in a neutral "!rl'"i'u 'o ,, counlrv, the ffoods retain their bclliircrcnt character until they (K) I he Sally, , •,'.' P ,. , ^ /^s 4 1 • •,• :j Hob. 300. Jii'c delivered accorduig to the agreement. (8) And in opposition n. ; 'l"b<: to thc ai)0ve decision in New York, it has been decided in the Atla«, 3 Hob. ][ouse of TiOrds, in JCnsfland, that proi)ei-ty c;oing to be delivered 299 • J lie JI1./00 Anna Caiha- ''^ ^he belligcrcnl country, and under a contract to become the rina, 4 Hob. propf'riy of the belligerent immediately on arrival, if taken in 107, 113. n. ir(tasil)i, is to be considered as belligerent property, unless the contract is made in time of peace and without any contempla- Sect. 6. Origin of Proper hj Warranted JVcutral 137 tion of a war.'(l) Upon the authority of this case Sir William (i) The Sally, Scott decided that goods sold at Vigo, by an American merchant, 3 Rob. 300. to the Spanish government, to be delivered at Seville, and paid ". A. D. 1/95. for when delivered, and to be at the risk of the vender until so (2) The Atlas, delivered, became, by this contract, Spanish property .(2) 3 Rob. 299. The property must not only be owned by neutrals at the The property commencement of the risk, but must continue to be so, as far as must not be depends on the assured or owners. Dollars were insured and *°!,'^ ^? ^.Ji^'i^'" 1 , _ . , rr-ii 1 1 1 n 11 r gefent during warranted Danish property. 1 hey belonged to one r errall, 01 ^^e risk. St. Croix, who assigned half of his interest in them to Amoresta, a Spaniard and belligerent, to secure him for advances. This (3) Goold r. was held to be a breach of the warranty. The court said the Un. ins. Co. property must not cease to be neutral by the act of the assured.(3) ^ Games, 73. The warranty is, that the property is neutral at the beginning jf ^j^g property of the risk, and shall continue to be so, as far as this depends on becomes belU- the assured or his agents. But if he becomes a belligerent, or gerent with- the property assumes a belligerent character immediately after ^^^ assured or the risk commences, by an act of his government, or that of his agent, it is any other government, it is not a breach of the warranty. This not a breach. is one of the risks taken by the insurers.(4) / ,n n •^ ^ ■' (4) Lden t. Parkinson, Doug. 732 ; Section 6. Orip-in of Provertii Warranted JYeiitral. Garreist\ O ./ r J Kensington, 8 T. R. 234; Property, though owned by persons domiciled in a neutral Saloucci v. country, may yet be in itself of a belligerent character. The Johnson, produce of a belligerent colony, shipped directly from the co- ^'^ ' lony to the mother country, by whomever owned, has been held Colonialtrade in England to be belligerent property; but if owned by neu- '>fabellige- trals, and exported from such colony for a neutral country, it is '"t^nt earned 1111- 1 ■ "^ , 1 "^ V on by a neu- neutral both durmg the exportation to the neutral country, and ^^.^i^ its re-exportation thence to a belligerent one. The question in such cases always is, whether an importation is intended, or whether there has been an actual importation, into the neutral country, or whether the whole transportation from the colony to the mother country, is one entire voyage. Goods warranted Dutch were taken on board at St. Eustatia, a Dutch island, part of them from on shore, and a part from barks ; and it was suggested that some of the barks had come from French islands in the West Indies, and from these, the goods were taken on board of the vessel without having been landed at St. Eustatia. Lord Mansfield said, ' It is now a settled point that it is the same thing as if they had been landed on the Dutch shore, and put on board afterwards,' in which case he (-5-) Bercns r. thought there could be no question as to their neutrality.(5) Rucker, l Bl This decision, like many others since given in Great Britain, ^i^. proceeds upon the principle that a neutral country cannot, dur- ing a war, carry on a trade between a belligerent country and its colonies, not permitted in time of peace. But this principle has been strongly opposed in the United States ; where it has been held that the participation in such a trade by a neutral, is only accepting a favour from the belligerent country, which the neutral has a right to accept, and that the circumstance of the 18 138 Express IVarranties and Conditions. Chap. IX. (1) V'asse r. goods being of colonial origin, and the trade being a branch of Ball, 2 Dail. the colonial trade of a belligerent, is not a breach of the war- r^?'=5ee Wairs ^^^^J ^^ neutral propertj.(l) This question has been the sub- American' ject of much discussion between the governments of the United State Papers States and Great Britain. (2) ^^ l^?,^' ^'^^ As there seems not to be any well settled and generally adopt- years! °^"^^ ed principle of the law of nations on this subject, it can only be (3; ThePhoe- said, that, to comply with the warranty of neutrality, the pro- nix, 5 Rob. perty must, in respect to its origin, and to the trade of which it ?^: rp. constitutes a part in time of peace, be such as is recognised to be Rendsborg, 4 neutral by the courts of the country where the contract is Rob. 121 ; made. The JanFre- 'pj-^g produce of a plantation of a colony of a belligerent coun- Rob. 128. ^^J' though owned by a neutral, has been held by Sir William (5) The Vrow Scott to be of a belligerent character.(3) And he gave the same Anna Catha- opinion respecting the produce of a belligerent colony contract- rina, o 1 ob. ^j ^^^ ^^^ ^ neutral in contemplation of war.(4) But if the pro- (6) The Anna duce be delivered before the declaration of a war, it is neutral.(5) Catharina, 4 Property derived from, or employed under, a contract of a Ji'^'^r^P'i;: neutral Avith a belligerent government for a privileged trade, is SRob.^lsT- ' held by Sir William Scott to have a belligerent character.(6) The Portland, And he considered the interest of a neutral in a house of trade 3 Rob. 41. established in a belligerent country to have the national charac- ^^:H. terofsuchcountry.(7) ano, 2 Gal. 268 ; Society er^iGai^iso' *^^^'^'^^^ '''• Property warranted JYeutral must be accom- (8) Cooiidge panicd with Proofs of its JYeutral Character. Co. 14 Johns. Under this warranty the ship or goods must not only be own- 314 ; Iliggins cd by neutrals, and not be of a belligerent character in them- r. Livermore, selves, but they must also be accompanied by sufficient tokens ■n ^np and documents to show that they are entitled to be respected as Ken. 106 ; _,., . . ■J . . . . , . ^ Barker v. neutral property. What evidence is requisite in this respect, PhcEn. Ins, depends upon the law of nations, and the laws and treaties of ^.?4 ^ P°'V^^; the country to which the ship and the owner of the property Low 1 Johns, belong. It cannot be said precisely what documents will be Gas. 346 ; sulficicnt tc ansAvcr the warranty, since the municijial regulations Barziilay v. quJ treaties of a country are liable to change. The warranty 5'26^-"nia'^'^e requires, in general, that the ship or cargo should be accompa- r. n'. York'' nicd with unccjuivocal evidence of its national character.(8) Ins. Co. 1 The flag is the most oljvious badge of the national character Games, 549. ^f ^j^^^ ship, and by the law of nations the ship is liable to be The flag. considered as belonging to the nation indicated l)y its flag.(9) (9) The Sue- /^ ship warranted neutral must therefore bear no other than the cess, 1 Dod- [],q„ of a nation that was neutral at the commencement of the Bon, l.Jl ; • 1 -1 1 r • 1 • 1 1 The Vrow Yiiik, and one warranted ol any particular national character, Elizabeth, 5 must bear no other flag than tliat of the nation to which the Rob. 2. warranty relates. The Bea-let- The same rule is adopted resj)rcling the s\up\ sra-lr Iter or pass^ ttr. which is a (-ertificate gi'anlcd, directly or indirectly, by the su- preme authority of a nation, dcclarhig that the ship sails under Sect. 7. Properly Wmranted JVeutral, S^c. 139 the protection of such nation, and expressly or by implication giving notice to all people, that she is to be so regarded. The na- tional character of the vessel is therefore explicitly avowed by the sea-letter, and it is not permitted to disown the character thus formally assumed. (a) In a policy on goods Irom New York to New Orleans, the as- -p^e ship is sured warranted that ' the vessel sailed under a sea-letter ;' and -warranted to a question was made as to the meaning of this term. The vcs- ^^'i ^'^^^ ^ sel 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 Ameri- can citizens, and that no citizen of any foreign state had any interest, directly or indirectly, in the vessel. The assured offer- ed to prove that this certificate of ownership was commonly un- derstood 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, subscribed by the President, and declaring that the master had made oath that the vessel belonged to citi- zens of the United States, and that permission had been given to export the cargo put on board. The form of this paper had been prescribed in the treaty of 1778 with France, of 1782 with the Netherlands, and of 1 795 with Spain, where it is called a sea-letter. By an act of Congress, of June, 1796,(1) the secre- (i)Law3U. tary of state was authorzied to prepare the form of a passport, ^' "*"• 2- ^' ^^^^ which being approved by the President, should be deemed a passport for vessels of the United States. Under this law the same form was adopted which had been agreed upon in the above treaties. By another act of Congress of March, 1803,(2) (2) Laws U. it was provided that every unregistered vessel owned by citi- S- ^- 3- c. 329. zens 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 ; by a sea-letter it seems to mean the certificate of own- ership. 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 document was to be understood by a sea-letter within the warranty.(3) (3) Sleght r. The court of errors, however, reversed this decision and per- Rhineiander, milted 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. As the vessel sail- ed with this certificate on boafd, it was held that the warranty had been complied with. (4) r^\ gigt^i-it ,,. Hartshorn, 2 (fl) The Vigilantia, 1 Rob. 1 1 ; The Vrede Scholtys, 5 Rob. 5. n. Johns. 531. See 6 Wheat. Ajip. 12, for what is considered to be a sea-letter in France, p. 36, for the form agreed upon by the United States and Holland in 1782, and p. 58, for that agreed upon by Great Britain and Russia in 1801. 140 Express fVarranties and Conditions. Chap. IX. 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 document. 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 warranty to be without it. The Register. The register is an important document under this warranty, as it shows to whom and to what port a vessel belongs, and is cer- tified by some officer of the customs, and accordingly bears with it some stamp of public authorit3% These two documents constitute the most material proof of (1) Barkers. ^^^ national character of the ship. But it depends on the laws, Phoen. Ins. and usages, and treaties of a country, whether either of them is Co. 8 Johns, absolutely necessary under a warranty of national character. Where a vessel warranted American, had a sea-letter but no register, this was held to be a compliance with the warranty.(l) The shipping- The shipping-papcr, bill of sale, muster-roll or role d'equipage, paper mas- j^^^j jog-book, must show, as far as they exhibit any proofs, that Ic-book. ^'^^ vessel is of the national character warranted. rjZ In rerard to the cargo, it must, under this warranty, be ac- must be ac- companicd by sufficient proof of its national character ; the m- companied by voices, biUs of lading, the letters relating to the goods, and the proofs of na- certificates of consuls or other officers, must all be consistent tional charac- -.i i r ^i * ^g^_ With, and confirm the warranty. In all the cases on this subject this warranty is held to require that the property should be owned in compliance with the war- ranty, and be furnished with the usual documents of national char- (2) GrifTiih r. acter.(2) Belligerent nations have not a right to prescribe to N^ A ° Bin neutrals by what vouchers their title to their property shall be 464 ; Siffken authenticated. But the right of throwing the burthen of proof r. Lee, 2 N. upon the neutral is conceded to them by general usage, or in R. 484. other words, by the law of nations. By declaring war against each other, they seem, by general consent, to ac(|uire the right of demanding of neutrals the proof that their property on the ocean is entitled to exemption from capture. Ard a warranty of neutral property is an engagement that this proof shall ac- company the property, and be forthcoming whenever its nation- al character is called in f|uestion ; since if it be not ready to be produced, the vessel is liable at least, to detention until it can (3) Living- '"- furnished. Under this warranty therefore, the property iionr. Maryl. must hc accompanied l)y documents of some description, and Ins. Co. 7 sufficiently authenticated, to prove beyond a reasonable doubt, Cranch, 53C. .i . a , • c .\ .• i i . .1 that the property is ot the national character warranted. Conrealinfiit ( Ihicf .lusticc Marshall says, 'that in g(!neral the concealment of papers. ,,f jimjx.j-s amounts to a breach of tlie warranty ^(S) and the Sect. 7. Property Warranted JYeiitral, Sfc. 141 carrying a material paper written in sympathetic ink, seems to (i) Carrerer. be equivalent to a concealment of papcrs.(l) Un. Ins. Co. 2 As the ship is bound by its ilag and passport, so is the cargo by ^''^^^'^ ^^q? the papers. Accordingly, if a cargo warranted neutral be accom- ' panied with simulated papers, giving it the appearance of being Simulated pa- the property of belligerents, though such papers are taken merely pers. 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 nation- al 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 neutral- ity.(a) 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.(2) And chief Justice Marshall says, that when the un- (2) Bell r. derwriters know, or ought to know, that, by the usage of the ^^r^y^f%^ trade, two sets of papers are carried to protect the property, (3) Living- ' they impliedly consent to the usage, and the set of papers, which stonr. Maryl. will protect the property, when its national character is called '^^^- ^^^ "^ in question, is to be produced.(3) Cranch, 536. An attempt on the part of the captain to disguise belligerent Disguising goods as neutral, is a breach of the warranty in respect to other ^^l^'S^^ent parts of the cargo. At the time of Spain's being at war, the tral.^^*"^*^" captain of a vessel took on board Spanish goods at Havana, which he disguised and represented as neutral. Those who had shipped the remaining part of the cargo, and warranted it neutral, forfeited their insurance by this act of the captain. The court said, ' The whole property of the assured on board the ship was liable to condemnation by the law of nations, if their gene- ral agents attempted to deceive one of the belligerent powers by covering the property of his enem3^' But if the same goods had been taken on board as Spanish, and so documented and represented, it Avould not have been a breach of the warranty in regard to the other goods.(4) (4) Phcen. As the captain is more directly the agent of the owners of the Jf^' 5'°* J"; ship, than of the shippers of goods, there is a still stronger reason 303. ' why such an attempt on his part should be a forfeiture of the warranty that the ship is neutral.(5) And so if the owner of (^) Schwartz the ship insured with this warranty, lends his name to protect ^ a^'wh t belligerent goods as neutral, by shipping them in his own name. Dig. h. t. 46.' it is a breach of the warranty. (6) (6) The For- The law of nations, in regard to what is to be considered neu- i^J!^' "^ „„ Vi ll€3.t ^3(i tral property, and in regard to the conduct necessary to secure it respect as such, is liable to be controlled by treaty, since na- tions may substitute express rules for those implied obligations which the general law imposes without any stipulation. And (a) Hone3'eri).Lushington, 15 East, 46; Oswell v. Vigne, 15 East, 70 ; Blagge v. N. Y. Ins. Co. 1 Caines, 549. Sir James MansfieU makes a query whether a neutral ves^^el may carry simulated papers. Steel V. Lucy, 3 Taunt. 285. Mr. Park, p. 531, says this query is answered bv the above cases in East. 142 Express Warranties and Conditions. Chap. IX. modifications of the law of nations in these respects have been made in many different treaties. (a) Sea-letter not 'pj^g United States and France made stipulations of this sort thec'cmi-^ in the treaty of 1778, in which it was agreed that in case of niencement of either party being at war, the other being neutral, the vessels of the voyage. (1) A. 23 Sc 25. (2) Rich r. Parker, 7 T. R. 701. Captain's place of resi- dence men- tioned in the passport. the neutral party, being furnished with a sea-letter and other documents, should not be molested by the cruisers of the other.(l) France being at war, the ship Atlantic was insured in England ' from London to Guernsey, the coast of Africa, and America,' with a warranty that she was American. The ship sailed on the voyage, but did not take a sea-letter until she ar- rived at Guernsey. The ship Avas captured by the French in a subsequent part of the voyage, after having taken a sea-letter, Avhich was on board at the time of the capture. But nothing could be recovered of the insurers because the warranty had not been complied with, as the sea-letter had not been on board from London to Guernsey, and the vessel was therefore during that part of the voyage not entitled to all the privileges of an American vessel, as the treaty implied that a vessel without a sea-letter might at least be detained, if not condemned.(2) In the same treaty it was also stipulated that, in case of war, the sea-letters of the vessels of the neutral party, to entitle them to the exemption agreed upon, should express ' the place of habit- ation of the master.' The Mount Vernon, being insured in England and warranted American, had a sea-letter running as follows ; 'Permission has been granted to George G. Dominick, master of the ship called the Mount Vernon, of the town of Phi- ladelphia, of the burthen,' &c. Lord Ellenborough said, the name of the town in the passport referred to the ship, not to the master, and that the vessel not being navigated according to the treaty had forfeited her neutrality.(i) Section 8. Warranty of JYcutral Property requires JYeur tral Conduct. It is not only necessary that property warranted neutral should be neutral in itself, and accompanied by sufficient evi- («) Answer to the Prussian Memorial, Col. Jurid. v. 1. p. 137. See treaties of the United States witli European powers ; Lavv^s of U. S. vol. 1. Ed. of 1815. (h) ]innu<>; V. Christie, b East, 398. See also Banng d. Claggett, 3 l>. &. I*. 201, on the same facts. The case turns upon the vessel's not heirig entitled to a rej;ister, from which Lord Alvanley and the other jiidi^es sujjposed she was not entitled to the ])rivileg'es of an American vessel. Chief Justice Kent supposes,' 8 Johns. 320, tiiat liord Alvanley did not know of any other act of Congress than that of 17iJ2 on this point, and seems to Ihiidc that his opinion would have been dilferent, had he known of tliat ol' 1802, f^iving vessels not cn- litlerl to a re},''lst(!r hut owned hy citizens of the United States, all the advantat^es of national protection. See also iJaring v. \ioy. E.v. Ass. Co. 5 East, !»'). Sect. 8. Warranty of JVeutral Property, ^*c. 143 dencc of its being so, but also that the assured and his agents who have the control of the property, should so conduct the voyage and employ and manage the property, as not to forfeit its neutral character. The public armed ships of a belligerent have a right to bring Neutral pro- to and search neutral merchant vessels, that is, to go on board P^''^^ »ssub- of them and examine the ship's papers and those relating to the l\„\^t of cargo, and put questions to the captain or other officers touching search, the neutral character of the property, and, in general, to ex- amine the property, the papers by which it is accompanied, and the persons having charge of it, for the purpose of ascertaining whether it is belligerent or neutral. This right is sometimes conceded with reluctance by neutrals, and as often enforced jj, -^ *j * with rigour by belligerents. It has been rendered so inconve- 144. Answer nient, that many attempts have been made to limit and regulate to the Prus- its exercise, particularly by Prussia, Holland, and Sweden, "an Memon- about the middle of the last century,(l) and again in 1780 by 3g5_ jj^ Russia and the other members of the Armed Neutrality. In a case before the court of King's Bench, in 1 785, it was held The right of that neutrals are under no obligation to submit to search, or in search, other words, that resisting search is not a forfeiture of neutrality. It was the case of a Tuscan ship, the Thetis, warranted neutral, on a voyage from Leghorn to London. She was captured by a Spanish vessel, and condemned as prize in Spain, on the ground that she had resisted search by firing into the Spanish ship demanding to make search, after the Spanish colours were hoisted. Willes J. said, ' If a neutral ship be stopped, those who stop her must pay for her detention. But it is said she must stop to be searched. I find no authority for this position. Stoppage is always at the peril of the captors.' Ashhurst, J. said, ' I do not find that a neutral ship must submit to be search- ed. It is rather an act of superior force always resisted when the party is able ; and the right falls within this position, that the searcher does it at his peril. If he find any thing contra- band or the property of an enemy, he is justified ; if not, he pays costs.' Buller J. said, ' The answer given to the claim of search is conclusive, that the party does it at his peril ; just like the case of a custom-house officer. The practice of the admiralty confirms it ; for they give costs in cases of improper detention, which they would not do, if ships w'ere at all events liable to be {•} ^aiouci r. , J ,/X\ Johnson, Stopped.'(2) _ _ _ rark,556. In a case before the same court in 1799, a difi^erent opinion is given as to the right of search. Lord Kenyon said, ' Before the late armed neutrality, it was considered in this country, and so decided in many cases, that the right of searching neutrals is part of the law of nations ; and it was supposed to be founded in reason.'(3) " Kel^''"''^' "* This question is elaborately considered by Sir William Scott, q x. r!234. in the case of a fleet of Swedish merchant ships laden with iron, hemp, tar, and pitch, on a voyage from Sweden to various ports of the Mediterranean, under the convoy of a Swedish frigate. The acts of the frigate and merchantmen Mere construed to be 144 Express Warranties and Condilions. Chap. IX. (1) The Ma- ria, 1 Rob. 360. (2) Robinson 11. Jones, 8 Mass. Rep. 539. (3) Mcl.el- lan r. Maine F. & M. Ins. Co. 12 Mass. Rep. 24G ; Snowden r. Phcen. Ins. Co. 3 Bin. 4.07 ; Robin- Bon r. Jones, U Mass. Rep. 536. The riicht of ecarch rei^u- lated by trea- ties. Resisttincn of «f:arch forieils the warranty. a resistance of search ; respecting which that judge said, ' that the right of visiting and searching merchant ships upon the high seas, whatever be the ships, whatever be the cargoes, whatever be the destinations, is an incontestible right of the lawfully com- missioned cruisers of a belligerent nation. . I say, be the ships, the cargoes, and the destination, what they may, because till they are visited and searched, it does not appear what the ships or the cargoes or the destinations are ; and it is for the purpose of ascertaining these points that the necessity of this right of visitation and search exists. This right is so clear in principle, that no man can deny it who admits the legality of maritime capture ; because if you are not at liberty to ascertain by suf- ficient inquiry, whether there is property that can be legally captured, it i§ impossible to capture. Even those who contend for the inadmissible rule that free ships make free goods, must admit the exercise of this right, at least for the purpose of ascertaining whether the ships are free ships or not. The right is equally clear in practice; for practice is uniform and universal upon the subject. The many European treaties Avhich refer to this right, refer to it as one existing, and merely regulate the exercise of it. All writers upon the law of nations unanimously acknow- ledge it, without the exception even of Hubner himself, the great champion of neutral privileges. In short, no man in the least degree conversant in subjects of this kind has ever, that I know of, breathed a doubt upon it. The right must unquestion- ably be exercised with as little personal harshness and vexation in the mode as possible ; but soften it as you can, it is still a right of force though of laAvful force — something in the nature of a civil process, where force is employed, but a lawful force which cannot be lawfully resisted. For it is a wild conceit that wherever force is used it may be forcibly resisted ; a lawful force cannot be lawfully resisted.' He adds, that if the right of search exists, the presence of an armed neutral ship acting as convoy, does not take it away ; it may prevent the exercise of the right if it be the superior force, but this will not affect the right itself.(l) Chief Justice Parsons says, that ' ncuti-al powers should al- ways be v»illing to allow the belligerents those rights and powers which have been established and practised upon for ages; look- ing to the time when they may be obliged to claim and exercise the same. '(2) The treaties of the United States with the European powers recognise the right of search, and ])rovide regulations for the exercise of the right. The neutral being under an obligalion to submit to search when it is legally demanded, and as far as the right is legally exercised, it is a violation of neutrality and a breach of this warranty to resist it ; and so it has been held in numerous cascs.(3) The right, of search includes that of sending a vessel into port for cxaminalion ; for il would he to no j)urpose to ))ermit search, without permitting, as incident to it, the right to send the neutral Sect. 8. Warranty of JVeutral Property, Src. 145 into port for the more satisfactory examination of the national (0 Wilcocka character of the property, in cases where there is reasonable ^"^ ^'bih '** ground of doubt. It is therefore a breach of the warrant}^ in 574;" The the captain and crew of a neutral vessel, sent into port under Maria, 1 Rob. these circumstances, to attempt to rescue and regain possession ^^i! ' 9^""*^^* ot the vessel. It is considered a resistance oi the right of (j t. R. I30. search.(l) It is not easy to say precisely what acts may be lawfully done What is a le- in the exercise of the right of search. Hubner thinks it should S^^ exercise be confined to the examination of the papers.(2) But it has not jga^ch"^^* °^ been so limited in practice, and in considering the liability of the captors to pay costs and damages for the abuse of this right, (2) Cbap. 2. courts have permitted them, in justification of their conduct in detaining neutral vessels, to give evidence of every circum- stance 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 un- necessary force or violence, to ascertain the national character of the vessel and cargo, andif any circumstance, from 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 ex- press stipulations of the parties will determine Avhat is a legal mode of search. It seems to be implied, in man}' cases, that neutrals are obliged Whether a to submit to be searched and detained at the discretion of a neutral ia known belligerent. Chief Justice Parsons says, ' The bellige- ^"""^ ^J^ rent having a right by the law of nations, to visit and search donebyabei- neutral vessels to prevent them from entering or leaving a port ligerent under under lawful blockade ; to seize and detain them if engaged in ^ pretence of contraband trade, or violating a blockade; and to capture and therieht^of carry into port neutral vessels, which may be transporting the searcii. property of his enemy, for the purpose of condemning such pro- perty: — it would be utterly inconsistent with these rights to al- low 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. General principles of policy require that in such cases the neu- tral should submit, and rely upon the justice of the tribunals of the belligerent nation.'(3) Similar language is held in many (3) Robinjon cases, from which it appears plainly that the power to resist, or ''• Jones, 8 opportunity to escape, docs not lessen the obligations of a neu- v^^^' ^^^' tral to sulDinit to search. This seems to be the principle to which the preccdin^r, and other like observations, are applica- ble; for it can hardly be supposed that the neutral is legally and absolutely bound to submit to all acts done b^'^a belligerent, under a pretence of exercising a right of search, though the bel- ligerent make known his character and produce his commission. 19 146 Express Warranties and Conditions. Chap. IX. It is a general principle that the unlawful exercise by force of a legal right, Avill justify a resistance. As to the discretion of the parties, each has the same, and neither can alter the rights, pow- ers, or obligations of the other, by the construction he puts upon them. The belligerent uses his discretion as to the man- ner of searching, and the neutral as to the right or expediency of resisting or escaping; but still it remains for the proper tri- bunals to determine what were, in truth, the rights and obliga- tions of the parties. Search iile- If a belligerent exercises the right of search illegally, it is not gaily made a breach of the warranty of neutrality to make resistance. It maybeforci- ^^.^g g^ (jgcided in regard to an American vessel captured by a y resis . l^gggp in \}xq 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 colours 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 (1) McLellan against the French government.'(l) M^^i^'^r*'^ Chief Justice Tilghman instructed the jur}^, in regard to a 12'Mass. Rep. neutral vessel captured and sent in for adjudication, that the 246. crew "was not obliged to navigate her. ' The captors should put sufficient force of their own on board. Should they send out a single hand, or so few that it was manifestly impossible to work her, this would not be taking sufficient possession. In that case the neutrals are not obliged to submit their property and lives to the mercy of the Avinds and waves, and may lawfully consider her as abandoned to them and act accordingly. But if a force insufficient to work the vessel is put on board by the captors, in consequence of the promise of the neutral crew to navigate her to the destined port, they are bound by such pro- (2) Wilcocks jj^igp^ ^r)(] niust be considered, for the purpose iigrecd upon, as Co. Confiy"i* ^he hands of the ca))tors. If in violation of their promise they Marsh. 534. n. take the vcssel, I am of opinion that it is an unlawful rescue.'(2) Sailing under It has been decided in one case, in Penns^dvanii, that sailing belligerent with belligerent convoy is not a breach of the warranty of neu- convoy. traUty. But the court considered this to be justifiable on the groimd that the Mihri decree, ngainst the operation of which it w;is intended by this means to protect the pr()|i(M-fy, ' put neu- trals in a state of oullawry, and strijiped (he vessel of her neu- (.1) Snowdcn tiTil rharacter.'(3) The coui-t considei-ed the French decree as r. I'haiii. Iii«. Jiostilc iti somc sort (<) n(",iii;il nations, and were accordingly of Co^SIijn. opinion that it might as such be resisted or evaded by them. Sect. 8. Warranty of JVeutral Property^ S{c. 147 This circumstance makes the case an exception to the general (i) The Ma- rule, which is, that sailing under belligerent convoy, is a forfeit- '"'^^ ^ I^^^. ure of neutrality, where the vessel puts itself under this protec- ^ ,' ,3^^, °" tion for the purpose of resisting or avoiding being searched by 545 ;' The Ju- the other belligercnt.(l) Ha, B Cranch, It has been held not to be a breach of the warranty of the ^^^" neutral character of the ship, that she carries a belligerent car- A ship-war- go.(2) And there seems to be similar ground to hold that the J^'^*^'* ^^^'j. warranty on goods is not forfeited by the circumstance of their ry a beiiige- being transported on board of an unarmed belligerent ship, rent cargo, But upon the principle assumed by Sir William Scott, it would and goods be a violation of this warranty to ship the goods by a public ^eu[ra'l eoods armed vessel of a belligerent, since it would be putting them carried in a under belligerent protection. Chief Justice Marshall says, belligerent ' The rule that the goods of an enemy found in the vessel of a P' friend are prize of war, and that the goods of a friend in the (^) Barker r. vessel of an enemy are to be restored, is believed to be a part ^J^t^^ss of the original law of nations as generally, perhaps universally, acknowledged. It has been fully and unequivocally recognised 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 for considering all goods that were claimed as Spanish, but found on board of an armed hostile vessel to be, for this reason merely, enemy property. Mr. Justice Story said, ' The general doctrine, though former- ly subject to many learned doubts, is now incontrovertibly esta- (^\ ^^e Ne- blished, that neutral goods may be lawfully put on board of an feide, 9 enemy ship, without being prize of war.'(3) Cranch, 383. A cargo does not lose its neutral character by being shipped The previous in a vessel that formerly sailed under belligerent protection, employment An insurance for a voyage from Surinam to the United States °* *^^ ship un- was made on a cargo warranted neutral, which was captured tion of a^eiu- and was condemned in a British vice-admiralty court, on the gerent, is not ground that the vessel had, in a previous voyage, sailed under ^ forfeiture of the license and protection of the enemies of Great Britain. The ^he Avarranty \ , , ■ r 1 1 111 that the cargo insurers resisted the clami lor a loss, on the ground that there is neutral. had been a breach of the warranty. But the court thought otherwise. Radcliff, J. said, ' Admitting the vessel to have been formerly employed in illicit trade, it would not affect the (.sy- ,, cargo of this voyage' — Kent, J. ' The unlawful trade that the juiineiander,' owner and his vessel might have been engaged in formerly, 3 Johns. Cas. could not vitiate or poison a subsequent lawful traffic. '(4) ^^^• ' If, says Vattel, I lay siege to a place or only form a block- The right of ado, I have a right to hinder any one from entering, and to treat blockade, as an enemy any one who attempts to enter the place, or carry any thing to the besieged, without my leave.'(5) The belligc- /5> 1, 3^ c. 7 rent having this right of intercepting all communication with a s. il7. besieged or blockaded place, a neutral accordingly has no right of keeping up any communication with such place, and an at- tempt to violate the siege or blockade is a breach of neutrality. ' On principle it might Avell be questioned whether the right to confiscate vessels bound to a blockaded port can be applied to 148 Express Warranties and Conditions. Chap. IX. a place not completely invested by land as well as by sea. If ■\ve examine the reasoning on which is founded the right to in- tercept 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.'(a) A blockade But according to the usage under the law of nations, the bel- requires an Jigerent has a right to blockade a place and cut oft' all commu- force?^ ^ nication by sea, although it is not at the same time besieged. Notwithstanding 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 (1) The that a place is not blockaded, so as legally to intercept the inter- Vrouw Ju- course of neutrals, unless a force is present for the purpose of dith, 1 Rob. maintaining the blockade, sufficient to cut off" all communication The Byfield ^^y sea, or to make an entry imminently dangerous.(fc) Sir 1 Edw. 188. William Scott says, ' A blockade is a sort of circumvallation, by (2) Radchffr. -which all correspondence and communication is, as far as hu- 7 Johi!"^54 •°" ^^^ force can eftect it, to be entirely cut oflV(l ) But if the block- The Frede-' ading squadron is occasionally blown oft", the commander re- rick Molke, 1 taining the purpose of returning to the station immediately, and Rob. 86 ; The ^gjj^g (|yg diligence for this purpose, this does not suspend the Rob^^iDe"! blockade.(2) TheJuffrow A blockadc is properly a uniform and universal exclusion of Maria Schroe- vessels ; if therefore some vessels are permitted to pass, others j^!!' ° ■ have a right to infer that the blockade is raised. Such a mode (3)TheRol- of keeping up a blockade destroys its effect. Accordingly, as la, 6 Rob. there is no valid blockade, there can be no breach of block- 3-2- ade.(3) A blockade A declaration of blockadc is said to be a high act of sove- mustbede- rcignty, and it is usually made directly by the government to ficlent auiho-" which the blockading squadron belongs. A blockade is, how- rity. ever, in some cases declared by an officer of a belligerent power, and when so declared, it will aftcct the subjects of neutral Th TT nations as far as the officer is authorized in his proceeding by his rick and Ma- government. The implied authority in this respect vested in a ria, 1 Rob. naval commander, is much greater at a distance from his govern- 1 ^^'' Jif >, '^cnt than when he is near it. To afiect neutral nations it must 364.^' ° ' ^^^ ^^'^ ^y competent authority.('l) .. ,r f f Neutral nations are not affected by a blockade imtil they have iht t.lockado notice of it. This notice may be publicly given by the bellige- js rc'iuisitc. rent 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. (rf) Letter of Cliicf .Jtislico Mnrshnll, wliilo Secrotiiry of State, of S(!pt('ml)er, 20, lOOO, to Mr. King, then Am(Mican Minister at London. n Wheat. App. p. 4. {!>) Tho lictsoy, 1 lioh. 9:5 ; Williams v. Smith, 2 Cainos, 1 ; Radclin'^i. Unit. Ins. ('o. 7 .Johns. 38; The Ilenrick and Maria, 1 Rol). MG ; Tho Frodorick Molkc, 1 Rob. 8G ; The Mrrr.urins, 1 Rob. 83, Journal of Congroi-s, vol. 7. p. 211. Doc. 4th. 1781. Sect. 8. Warranty of JYeutral Property, Sfc. 149 It must appear, either that the neutral subject has had notice of (i) The Hen- the blockade, or that it was so pubHcly and generally known, rick and Ma- that he must be presumed to have a knowledge of it.(l) Those 74(1? Radcliff persons who are in the port blockaded are always presumed to ^. United Ins. have notice of the blockade.(2) ^o. 7 Johns. A blockade is prima facie presumed to continue till notifica- ^^ ' ^^johna. tion is given of its being raised.(3) Neptunus, 2 If a blockading squadron is driven off by superior force, a Rob. iiO; new notification will be requisite, if the blockade is resumed.(4) ^^ Adelaide, If the assured have actual or constructive notice of a block- ^^ . ^J^g q'^^ ade declared upon sufficient authority, and maintained by an lypso, 2Rob. adequate force, an attempt on his part to carry property war- 298 -, The ranted neutral, to or from the blockaded port, is a violation of i^ u*^^n"%i 1111111 1 r 1 ^ l^ob. 80 ; I he the blockade and a breach oi the warranty. Roiia, 6 Rob. It is a violation of a blockade, to sail from the blockaded port, 364. as well as to enter it.(5) But a neutral vessel that had entered Neutral pro- the port before the blockade, may come out in ballast,(6) or with perty may be a cargo taken on board before the blockade began,(a) but not brought away with one taken on board after notice of the blockade.(6) So a ad^^oJr^" ship may bring away from a blockaded port the cargo imported . in her before the declaration of blockade and still remaining Vrouw Ju- on board. But a vessel purchased at the blockaded port after dith, i Rob. the declaration of blockade, cannot be cleared out from the port l^^* while the blockade continues.(c) In regard to the acts that amount to a violation of a blockade, What acts a- Sir William Scott says, ' If a vessel sail for a blockaded port, mount to a after having received notification of the blockade, the act of blockade ° ^ sailing is to be considered as a breach of the blockadc.'(<^) But Chief Justice Marshall, giving the opinion of the court,(e) inti- p) "^^^ r^^" mates that the act of sailing for the blockaded port, knowing it jr^g. ' to be such, must be coupled with the intention of entering it, in (4) The Hoff- order to constitute a violation of the blockade ; for a vessel "ung, 6 Rob. might sail from the United States for a blockaded port in Europe, ]l\'-Qy^^ q after notice of the blockade, with the expectation of its being j. p. i, i.'c' raised before her arrival, and with the intention of sailing for 4&: ii; The another port if the blockade should not be raised. Sir William i^'^^'^^^i!^}^'* c ,» u • • -1 • • / ^\ Pillaw,2Rob. bcott has given a similar opinion.(/) ^28. Resoiu- To constitute a violation of blockade, it is requisite, not only tion of the that the party should have the intention, but also that he should states Gene- do some act in pursuance of such intention. (g) ' The law of na- \f^^f ^q^o. 3 tions does not admit of the condemnation of a neutral vessel for Rob.' 326. n. the intention to enter a blockaded port unconnected with any (6) The Fre- fact. Lingering about the place, as if watching for an oppor- ^^r^J^ ^f^^^ tunity to sail into it, or the single circumstance of not making (a) Oldden v. M'Chesney, 5 Serg. & Rawle, 71 ; Olivera v. Un. Ins. Co. 3 Wheat. 183; The Vrouw Judith, 1 Rob. 152; The Juno, 2 Rob. 118; The Potsdam, 4 Rob. 89. (6) The Neptunus, 1 Rob. 172; The Rolla, G Rob. 371; The Comet, 1 Edw. 32. (c) The General Hamilton, 6 Rob. Gl ; The Vis^ilantia, G Rob. 124. ((/) The Vrow Johanna, 2 Rob. 109. (e) 4 Cranch, 199. ( /") The Betsey, 1 Rob. 334 ; The Shepherdess, 5 Rob. 263. (g) Calhoun V. Ins. Co, of Penn. 1 Bin. 293. 150 Express Warranties and Conditions. Chap. IX. (1) Fitzsim- immediately for some other port, or possibly obstinate and de- mons V. New- termined declaration of a resolution to break the blockade, 4Craiich^°* might bc evidence of an attempt, after warning, to enter a block- 199'.^'''''' aded port.'(l) The captain ^ vcssei sailed from Dantzic for Havre after public notice of informed its being blockaded by the English, but the captain was inform- from a fleet ed from an English fleet, which he met with during the voyage, ade^^ rai's'^ed' ^^^^^ ^^^'^^ ^^'^^ "°^ blockaded. Sir William Scott held that if . . „ ^ ' the vessel had been taken before meeting with the fleet, she tunus 2 Rob' would have been taken in delicto, and liable to confiscation, but 110. ' the information received from the officers of the fleet being such (3) Tlie Cou- as the captain was authorized to rely upon, a state of innocence rier, 1 Edw. commenced from that time, and he was justified in proceeding (4)'The Juf- foi" Havre, although the place was in fact under blockade, ac- frow :Maria cording to the public notification, of which the captain was pre- R h^°i47'^- ^ sumed to have had knowledge at the time of sailing.(2) But it TheHenri'cus ^^'^^ '^^^^ ^" another case that a neutral ship was not authorized 3 Rob. 159. to proceed to a port interdicted by a belligerent government, n. ; The Vrow by tlie permission of an officer of a cruiser of the belligerent, Rob ^^^58 n • ^^^ gives the permission under an erroneous construction of such Oiddenr* *' interdiction.(3) jPChesney, 5 It is held not to be a violation of blockade to enter or de- Ser?. & pai-t from a port, wuth the permission of the officers of the block- Rawle, /I. ' T 1 1 xi I • -1 1 • • ading squadron, and the vessel entering with such permission enter!*^'°'^ ^^ "^^3^ ^^^^^' °"'- ^""^^ ^^^ V^'^ "^^•^'^ ^ carg0.(4) .,..,. It is not a breach of blockade to enter the blockaded port A ship in dis- „ . . ,. , , ^ , tress may en- irom necessity in distress, when no other port can be made; ter abiockad- but the necessity must he clearly made out. (5) So a ship may ed port, or if ylsit a blockaded port by the license of the government to which cense. ' ^^^ blockading squadron belongs, and such license is construed liberally in favour of the neutral.(a) A ship troini^ ^^ ^as been held to be a violation of blockade in the owner of to the port to a ship sailing from Dronheim for Amsterdam, then blockaded, to inquire whe- instruct the Captain to proceed to the mouth of the harbour, for blockade is ^^^^ purpose of in(juiring whether the blockade was raised. He raised. should have ordered the captain to inquire elsewhere. And the court intimates that sailing from the United States for a Eu- ropean port, known to bc blockaded, with similar instructions, would be a breach of the blockade.(/;) Goods may be ^^ is '10^ ^ violation of blockndc in a neutral to purchase goods transported at the blockaded port, and transport them inland to another port inland from ^ot blockadod, and expoi-t them thence ;(r) or to transport goods blockaded ^^Y '"''^'"^' navigation to the blockaded ])orl.{d) port. An agreement by charterparty to sail to a port, which is after- (5) The For- wards blockaded, does not justify the captain's proceeding on tuna, r>liob. the voyagc, after notification of the blockade. (c) And Sir Wil- niarbli'in '"'''" ^^'^^^^ 'i*"'*' '^^ ^'^ ^'^ a breficli of blockade in a captain not to 1 Kdw. .i.Vi; The Huriiu'c («) Tlu' .liiiio, 2 Rol). IHi ; Tim llon'mmt^, 2 Rob. 1G2. (//) The Han.-, '2 Rob. Sp<-s &i Tli(> Ironc, 5 Kol). TO ; 'IMic INishni, I Kol). 335. n. (r) The '-''■ Ocean, .'5 |{ol). 207. (d) 'IMic Stcrl, -I Hub. (Jo; The Jon^c. I'ioter, •1 Kob. I'J. {<■) Tlic Tutelii, G Rob. 177. Sect. 8. Warranty of JYculral Property, S^c. 151 change his course for a different port, after being warned that the port of destination was blockaded.(l) But it appears from (i) The Ado- the decisions of the same judge cited above, that the construe- nis, 5 Rob. 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 ^ iiob^ 26^"-' notification, and other circumstances showing whether he con- The Apollo,' 6 tinues on his course with the purpose of violating the blockade, ^^°^- 286. or with the expectation of its being raised, and the intention of waiting at some other port for that event. On a question respecting a breach of the blockade of Amster- dam during the time of its being blockaded by the English, in 1798, judgments were given upon the same facts by four differ- ent courts. The Columbia sailed from New York for Amster- dam without any knowledge of the blockade. The master put into Cruxhaven, which is one or two days sail from Amsterdam, where he heard of the blockade, and he was instructed by the consignees of the cargo at Hamburgh ' to proceed to Amster- dam, if the wind should be such as to keep the English at a distance.' It was however understood at Cruxhaven ' to be the practice of British cruisers to stop vessels bound to Amsterdam and send them back without seizing them, and only to seize in case of a second attempt to enter.' The captain accordingly sailed for Amsterdam, with the expectation of only being order- ed back if he should meet with any British public armed ships ; but his vessel was seized. The eighteenth article of the treaty of 1794, was insisted upon in justification of the captain's con- duct ; which article provided, ' that a vessel, sailing for a port, not knowing the same to be blockaded, may be turned away, but shall not be detained nor her cargo confiscated, unless, after no- tice, she shall again attempt to enter.' Sir William Scott said, ' The design was to seize the opportunity of entering whilst the winds kept the blockading squadron at a distance. Under these circumstances, I have no hesitation in saying that the blockade Avas broken. But it has been said by the American treaty there must be a previous warning; certainly, where vessels sail without a knowledge of the blockade, a notice is necessary, but if you can affect them with a knowledge of that fact, a warning then becomes an idle ceremony, of no use and therefore not to be required.'(a) He accordingly condemned the vessel and cargo; and his judgment was confirmed on appeal.(2) (2) The Co- An action was commenced in New York upon a policy, by li'",''^'?' ) which the cargo of the Columbia was insured and warranted American. Justices Radclifl^, Kent, and Benson concurred in the opinion of Sir William Scott, and thought the warranty had not been complied with, and the judgment of the court was in conformity to their opinion. Chief Justice Lansing dissented, upon the grounds that ' the blockade constituted one of those risks intended to be insured against by the policy, being an event calculated to defeat the voyage, occurring after its com- (o) The Supreme Court of the United Stales put the same coa- struction upon this treaty. 4 Cranch, 200. J 52 Express Warranties and Conditions. Chap. IX. (1) Vo9 r. Unit. Ins. Co. 2 Johns. Cas. 180. (2) 1 Caines' Cas. vij. 2 Johns. Cas. 469. See also Liotard r. Graves, 3 Caiaes, 226. (3) Williams »•. Smith, 2 Caiues, 1. (4)M:»ryl.Fiins of itic j):trish, relating to his character and circumstances, and of ilicir l)eli(>f that he had really, and liy niislortiuic, sustained the Chap. X. IVhat Risks may be Insured against. 157 loss for which indemnity was claimed ; it was held that such a certificate must be produced in order to entitle the assured to recover, and that no equivalent proof would answer. There was, however, some diversity of opinion among the ditlercnt judges on this subject. Where it appeared that the minister and church wardens wrongfully and unjustly withheld the ccrtilicatc, Eyre Chief Justice, and Bullcr and Rook Justices, thought that the production of the certificate could not be insisted upon. They said that the policy, being a commercial contract, was to be construed liberally, and the question was, whether the loss had been fairly incurred ; if it had, the refusal of the minister and church wardens was without good cause, and therefore the assured were entitled to recover.(l) But a different opinion was 0) ^^'^°^^' entertained by the court of King's Bench. Lord Kcnyon said, jj °{.^_ ^^'^^ ' It seems to me that it was the intention of the parties that the certificate should precede payment. If there be a condition precedent to do an impossible thing, the obligation becomes sin- gle ; but however improbable the thing may be, it must be com- plied with, or the right which was to attach on its being per- (2) Worsley formed, does not exist.'(2) T. T'tio! CHAPTER X. WHAT RISKS MAY BE INSURED AGAINST. X HE risks in insurance are the causes of loss against which the policy is intended to indemnify 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 pecuniary damage. But there are some exceptions to this rule, which de- pend upon the same principles that have been stated respecting insurable interest. A contract of indemnity against any risk is void, if incurring the risk, or permitting indemnity against Hlegal risks, it, be in contravention of the provisions or obvious policy of the laws, 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 (3) Anon. 5 actS.'(3). Taunt. 606. But a person may be insured against the consequences of vio- Violation of lating the regulations of trade and the municipal laws of a fo- j^^'^^sn trade reign state.(4) If the vessel or cargo be seized and condemned in a foreign country, for \ iolating their revenue laws, the insurers ^^ "^'^' will be liable to pay this loss, provided it appears by the policy, 158 What Risks may be Insured against. Chap. X. The assured may be pro- tected against the foreiga administra- tion of the law of na- tions. (1) Valint.2. p. 130, the court says, that to trade in foreign countries in violation of their laws, is regarded as an ingenious and laudable species of ad- dress. One cannot be insured against the consequences of his own misconduct. (2) Goix r. Knox, 1 Johns. Cas, 340. (3) Earl v. Shaw, 1 Johns. Cas. 317. See Poth. n. 65. (4) Simeon i>. Kazett, 2 M. k S. 94. (5) Anon. .0 Taunt. 005. and the course of trade, that this Avas one of the risks contem- plated by the parties.(l) A vahd contract may also be made for the purpose of indemni- fying the assured against the administration of the laws of nations by 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 warranty of neutral property, that proof of the pro- perty's being neutral should be ' made only in the United States.' The construction put upon this provision was, that the parties to the policy should 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. The assured was by this agi-ee* ment protected against a judgment of a foreign tribunal, which should be considered erroneous by the American tribunals. And no question has ever been made as to the legality and validity of such an agreement, but, on the contrary, it has been expressly sanctioned and acted upon in many cases, by the same courts which held that, without such an agreement, the judgment of the foreign court would be conclusive. A person cannot protect himself by insurance against the loss occasioned by his own fraudulent acts and misconduct. A po- licy 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 necessary and proper, for it cannot be suppos- ed that the plaintiff was to be insured against his own fraudulent acts. '(2) ' If the assui-cd is guilty of fraud or culpable neglect, his conduct ought not to affect the insurer, and the loss in conse- quence will be his own. '(3) Lord Ellcnborough said, in one case that an insurance even against the assured's own acts might be good, if the underwriter was disposed to enter into so hazardous a risk.(4) But this proposition ought certainly to be limited to the mistakes, or at most to the negligence of the assured; since an agreement by one party to indemnify another against losses voluntarily incurred, seems to be so obviously opposed to the ge- neral interest of a community, that it could hardly be enforced by any legal tribunal. And there is the same objection, in a smaller degree, against sustaining a contract to indemnify a man against the consctjuences of his own negligence. By such an agreement one man would consent to put himself wholly in the power of another, and it could operate only to the injury of the parties, and of the community of which they were members. It was made a question whether the members of a mutual insurance company could bind themselves to indemnify each olli(;r for the loss that any one might incur by his own vessel's running down another. The court said, (he assured arc also ' insurers, and are as much interested to extend the principle of loss as to restrain it -,'(5) and the insurance against this risk was accordingly held to be valid. But the court intimates by giving this reason, that if the contract necessarily made it for the in- terest of the asiiurcd to incur danKi<;i', it would fui- this cause be void. Chap. X. What Risks may be Insured against. 159 Upon the principle thai a man cannot cflectually contract to be indemnified against the consequences of his own misconduct, or the losses and damage which he may voluntarily incur, it has been doubted whether he may be indemnified against the acts of the government of which he is a subject. I'his ques- tion was first raised in a case where both contracting parties were subjects of the same government. A vessel insured, was seized by governm.ent and converted into a fire-ship. Chief Jus- tice Holt was inclined to the opinion that the insurers were lia- ble, but the case being referred, the point was not decided.(l) (l) Anon. 2 Lord EUenborough said, that where the assured was a British ^^.ik. 444; 2 subject, he might recover against a British underwriter for a loss ^^o ^^^' sustained by an act of their own government ; ' that being to- (2) Page v. tally different from the case of a foreign assured ; for amongst Thompson, our own subjects, whether the plaintift' or defendant sustain the ^,^l\ ^^^' "• 1 • • T 1 • i- .1 i/^\ rrii. ("^) JJelano r. loss, It cannot prejudice the mterests 01 the country. (2) ihe Bedford Mar. same principle is adopted in the United States.(3) Ins. Co. 10 In the case of a policy on an American ship from New York Mass. Rep. to Wilmington, N. Carolina, and thence to Dublin, which sailed ^, j^'^ Co"of on the voyage to Wilmington, but was detained by an embargo Penn.Condy'a before she got to sea from that place; Chief Justice Kent, giving Marsh. 608. n. 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 ex- isted. 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 government, 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.'(4) (4) M'Bride But it has been held in some cases that a foreign assured is ^'^ 5 johnJ not indemnified under a policy in the common form, against the 299. See also acts of his own government, although those acts are arrests and Waiden f. restraints, which are expressly included among the risks assumed Phcen. Ins. by the underwriters. Some Americans, being neutrals, shipped 3^0 ^ Oo^den property for a voyage from the United States to Liverpool, which r. New York was insured in England on account of the shippers. A vessel Firem. Ins. belonging to the American consul at Liverpool, was insured j^^ ^ there at about the same time. After the risks had commenced under these policies, the vessel and cargoes insured, were detain- ed in the American ports by the embargo of 1807. Losses be- ing claimed on this account. Lord EUenborough, who gave the opinion of the court, said, ' In all questions arising betwfeen the subjects of different states, each is a party to the public author- itative acts of his own government ; and on that account, a fo- reign subject is as much incapacitated from making the conse- (5) Conwnj quences of an act of his own state, the foundation of a claim iVlf^t'^^ssfi ■ against a British subject, in a British court of justice, as he would same t-.' ' be if such an act had been done immediately and individually Forbes, 10 by such foreign subject himself.'(5) IF,^^^' ^^^ • But in a later case the opinion of the same court, given by the shedcien' 10 same judge, does not confirm this doctrine. A ship and cargo Ea»t, 540. 160 What Risks may be hisured against. Chap. X. belonging to Prussian subjects, residing at Colberg, being insur- ed in England, were seized and confiscated by the Prussian go- vernment, 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 EUenborough said, ' There is no doubt that an insurance upon an American ship, against an American embargo, might be good ; for not only an in- surance 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 be held to be included whenever the reason of the thing requires it.' (1) ^'"^^^°^- And judgment w^as given for the assured.(l) But it is not said & s. 94." ^ * ^^^^^ there was any difference between the policies, or any other circumstance to distinguish the cases ; the latter decision, there- fore, seems to overrule the former. Chief Justice Kent says, of this supposition that the act of the government is that of its sub- (2) 5 Johns, jects, that the argument drawn from it is ' too fanciful' to be en- ^^^' titled to any wcight.(2) An insurer It has been held that a foreigner cannot be indemnified for the cannot bind hostile acts of the 2;overnment of which the insurer is a subiect. Jiinis^ii to 111" • • ■ • demnify a fo- -^ dificrent Opinion was acted upon in Lord Mansfield's time, as reignera- we have seen, for then an alien enemy recovered in some in- gainst the hos- stanccs of British underwriters for losses by British captures. (3) jns^urer's°go-*^ -^"^ such a claim, could not now be enforced, and it was nc- vernment. ver fully and distinctly recognised to be legal. (4) A neutral ,„ ^ assured, however, stands on a different footing, there being no le- son V. Fersrus- g^^ objection to his claim, on account of his national character, son, Doug. Accordingly, in a number of instances, the assured under these 3G1 ; Eden v. circumstanccs have recovered. In some of these cases the pro- iJoue"?^"' P'^''*-.y ^^'^^ neutral at the time when the policy was made, but (4) Supr. 29. was captured afterwards in consequence of a declaration of war, ic seq. by the government of the insurers, against the nation to which the assured belonged. One of the cases above cited is of this description. Dutch property was insured in England, and, be- foi'c the expiration of the risk, was captured by the British, after (5) E(](:n r. a declaration of war. (5) In another case, French property was I'arkinson, insured ill lOngland, and war being declared, the property was °"''' ' ■ captured by the British, and the loss recovered of the British (^') T^!'^''?" underwritcrs.(G) These cases have been overruled, and the as- 8on 'supr!^'' sured in like circumstanccs could not now recover; the objec- ?ii-t:ihn rian- tiou would uot mcrcly lie against them personally, as alien cne- tamonr r. ^ niics, during the continuance of the war, but would go to the sub- n^WlT n ' •'^^■'"^-c <^>f ihe claim ; it being now held that a foreigner cannot be (7) Camilla indemnified for a loss by a hostile act of the government of which r. Ijf Mcsiiu- the insurer is a sul)ject.(7) It is so held upon the same princi- rirr, 4 1'.Hst, j^jj. ^^^ which insurance of enemy's property is void, since to allow the insurance to be effectual in such case, would, says Lord Ellenljorough, be ' directly and obviously against the in- Sect. 1. Jit what Time or Place the Risk begins. 161 tcrest of the state, having an immediate tendency to render in- efTcttual all offensive operations by sea.'(l) (i) Kellncrr. Thus it was held that British insurers of a vessel that was ^^ Mcsi^ricr, detained by a British embargo upon all Swedish vessels, were rn. t!!!' t • not liable lor the loss occasioned by this detention, the embargo commented being of a hostile character. Lord Alvanley, and the other "pon, '7 judges, were of opinion that the insurers could not legally be ^^^*' '^^^' bound to pay such a loss.(2) _ . . (2) Touieng But though the general words of the policy include this risk, v. Plubbard, 3 or ,it be particularly insured against, and appears to be one of ?^.''*'^'^" ~^^' the special objects of indemnity in the contract, yet it was inti- j), Cowie^'^ mated by Lord Ellenborough that the contract might not, for i m. & s! 52. this cause, be void, but might be valid in regard to the other where Lub- risks, assumed by the underwriters.(3) 7*^E^t 44°9^is But a neutral may be insured against any act of the govern- cited. ' ' ment of the insurer, which is not of a hostile nature. An Ame- . rican ship, the Hannah, was insured in England, on a voyage mayb^ncThim- from New York to Havre, in the course of which she was ar- self to indem- rested by a British cruiser, and carried into Bristol, to ascertain nify a foreign- whether she had French property on board ; there being a ^'■^c^i"^* war at the time between England and France. The loss occa- hostile acts of sioned by this detention was claimed of the underwriters, who the insurer^s objected that they could not bind themselves to indemnify a government. 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 com- merce with France, and to be the carrier of goods for French subjects. The indemnity sought in this case, is not an indemnity to an enemy, or to a neutral forfeiting his neutrality by an act hostilcly done by him against the interests of Great Britain, but Bi^i^es*^ g^"" "' an indemnity to a neutral, as such, against the consequences of East, 283. of an act innocendy and allowably done by him in the exercise S^^e also Vis of his own neutral rights, and as innocently and allowably, to a ^ott^'k Es^' certain degree, controlled and interrupted on our part, in the 134'; Keilner exercise of our rights as belligerents.' And on this ground that v. Le Mesu- the detention was not of a hostile character, judgment was given l^"-> '* ^^^^' in favour of the assured.(4) CHAPTER XL THE VOYAGE AND PERIOD OF THE RISK. Section I. j9t what Time or Place ihe Risk begins. Since the underwriters are liable only for losses arising from The risks the perils insured against, and within the time for which the risk must be suffi- is to continue; it is requisite that the policy should specify what gcribed. ^' 21 162 The Voyage and Period of the Risk. Chap. XI. (1) Code de Com. 1. 2.t. 10. n. 152. (2) Manly v. Unit. M. Sz F. Ins. Co. 9 Mass. Rep. 85. (3) b. 2. c. 7. 8. 14. (4) Manly v. Unit. M. & F. Ins. Co. 9 Mass. Rep. 85. (5) Dolon- ^Mi(tin< rf r. I'ircn). \n^. Co, 10 Johni. 12G. (C) Sir Ro- hirrt Howard's Case, 2 Salk. 625. risks the insurers assume, when those risks commence, and for what period they arc to continue, or by what event they are to be terminated. Some marine ordinances contain regulations in regard to the time when the risk on the ship or goods shall begin and cnd.(l) 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. Mr. Justice Sewall says, ' The risk is to be described with suitable and convenient certainty. When the insurance is for a term of time, the termini are the day and hour when the insu- rance commences and terminates. When the insurance is on a particular voyage, there is generally no reference to anytime. The termini are the places from and to which the vessel is bound. These are to be expressed in the policy, and if left in uncer- tainty by any omission or blank, and when either appears to have been mistakenly or untruly stated, the policy is void.'(2) Molloy says, if a ship be insured ' from London to ,' the risk will not attach for want of a sufficient description. (3) But courts do not require a very minute accuracy hi the description of the risk ; and it is, in general, sufficient if the intention of the parties, in respect to the commencement and ending of the risk, can be satisfactorily gathered from the policy, and any inci- dental error or inconsistency, in immaterial circumstances, will not defeat the contract. 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 Barba- does on the 7th of December, 1810, at 12 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 })olicy,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 in- tended to l)c warranties. (4) In a policy upon a vessel, the risk was described to be ' at and from her port of lading in the province of Yucatan.' The vessel was loaded in an open road-stead at Angostura, which has no harbour, or port, in the strict sense of the term, nor, as it seems, is there a harliour belonging to any other place in the province of Yucatan. This was held to be a sufficiently accu- rat(^ description of the risk, at and from Angostura. (5) If the risk be described to commence on a certain day, it ex- lends to all losses happening during any part of the day ; but a question has occurred upon the construction of a policy from a rcrtiiin day. The life of Sir Robert Howard was insured 1)ya policy (Inled on the third of Se])tember, ' for one year from the dnlr^ thereof. \\v died on tlu>, thiril of Seplember following. C>liief Justice Holt instructed the jury that, '/"ro?/i the daif of the date excludes the day, but^rom the dale includes it.'(C) Whether Sect. 1. j^t what Time or Place the Risk begins. 163 the expression, frorn the day of the date, excludes that day, was afterwards very elaborately considered by Lord Mansfield, who examined all the previous authorities on the subject, Avhich he said were ' so many contradictions backwards and forwards.' He came tb the same conclusion, which Lord Hardwicke had made, that ' the construction must always depend upon the sub- ,.. p ject matter.' It was held also that from the date, and from the Leeds Cowp. day of the date, meant the same thing.(l) 714. The risk may commence before the policy is subscribed, where The risk it is not known by the parties whether the property is in safety; may extend to and to show that the agreement is intended to extend to pre- vio'i^toihe vious losses, the clause, lost or not lost, is introduced into policies, date of the But this clause is not necessary, it is sufficient if it appear by policy. 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 ; ' 1 promise to pay the Earl of March 500 guineas if my father dies before Sir W. Codrington ;' signed by William Pig"^; 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 Mans- field said, ' It was not known that the father of either of them was then dead. Their lives, their healths, were neither war- ranted nor excepted. It was equal to both of them whether (m\ r i r one of their fathers should be then sick or dead. That the event March v. Pi- had happened was in the contemplation of neither party. The got, 5 Burr, nature of such a contract and the manifest intention of the parties "f^%, ^'^^ support the verdict of the jury,' who applied the contract to the lo^^i-, Donald- previous event. (2) son, 3 Esp. 63. The freight of a vessel being insured ' at and from Demerary, At and from Berbice, and the Windward and Leeward Islands, to London,' Berbice, &c. the master at Demerary agreed to take a cargo, which was to be ° °" °"* discharged at Berbice, and to carry another cargo from Berbice to London. A loss happened before the vessel arrived at Ber- bice. It was held that the risk had not commenced under the policy. It was said that ' the first voyage from Demerary to Berbice had nothing to do with the voyage insured. The voyage insured was from Demerary, or Berbice, or the Windward, or .». „ ,, Leeward Islands, according to the place from which the ship M'Vicar i N. might happen to sail on her voyage to Londo7i.\S) R,23. Goods being insured 'at and from Gibraltar to Dublin,' were At and from shipped at Malaga, and the vessel did not put into Gibraltar, t^ibraitar to Chief Justice Gibbs held that the policy did not attach.(4) V**^^^'^**- ... , 1 t . 1 r"^ /-I IT At and from A policy was made on goods at and trom Caermarthen to Lon- Caermarthen don.' The goods were in fact taken in at Llanelly, which is a to London. member of the port of Caermarthen, but having a distinct (^) Park r. custom-house. Caermarthen lies further up the river, and j j^^j^ ^q'. is accessible only by an intricate navigation, and few ships clear S. C. 2Marsh. out there, except the coasting vessels belonging to the place. ^^^V- 15^9 ; 6 Yet the court decided that the risk run, was different from that 7A"S** '^^^* described in the policy, one terminus of which was Caermar- Hutchinson, 2 then.(o) ■ Taunt. 405. u 164 Tlie Voyage and Period of the Risk. Chap. XL (1) Constable V. Noble, 2 Taunt. 403, At and from Calcutta to New York. (2) Murray v. Col. Ins. Co, 4 Johns. 443. At and from Jamaica. (3) Cruik- shank v. Jan- son, 2 Taunt. 301, The ship must be in safety at the place where the risk is to begin. (4) Bell t-. Bell, 2 Camp. 475. (5) Parmen- ter?'. Cousins, 2 Camp. 235. The ship is boui;ht by the assurt'd, at the j)lac<; at ■wliieh the risk begins. (0) Steinback V. Hliinehin- ch-r, 3 JohtiH. Ca». 2G9. And another case was decided upon the same principle. It was that of a policy on flour ' at and from Lyme to London.' The flour was shipped at Bridport Harbour, 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 favour of the underwriters.(l) A decision has been given in New York upon this point, in a case where the actual risk was strictly a part of that described in the contract. The policy was on ship and freight on a voyage ' at and from Calcutta to New York, with liberty to touch at Madras for trade and to take in a part of the cargo.' The ves- sel did not go to Calcutta, but took in the whole cargo at Madras. Mr. Justice Thompson, giving the opiniofj of the court, said, ' It is impossible to say that a voyage from Madras to New York, is the same as a voyage from Calcutta to New York. The adven- ture is to begin at and from Calcutta. I should not think it com- petent for the assured to select at pleasure any point of the iler^ and say the voyage insured shall commence there. '(2) Under a policy at and from a place, a doubt concerning the commencement of the risk sometimes arises from the extent of the place named. A policy at and from Jamaica is held to at- tach at any port of the island, and to protect the property from port to port in the island.(3) Under a policy on a ship ' at and from' a foreign port, the risk is held not to commence till the vessel is there in safety. Lord Ellenborough says, ' The safety required to ^ive 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.'(4) A policy being made on 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 vo3^age, 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. The risk was held not to have com- menced. (5) Tlic risk cannot commence until the assured has an interest. Accordingly in the case of a policy on a vessel ' ai and from Trinidad,' which the assured had purchased at that place, the risk commenced at the time of the ])urchase.(C) A ship and freight were insnred 'at and I'rom Pcrnambuco, or any other port or poits in ihe Brazils, to London; beginning the adventure upon the said ship on the tei-mination of her cruise, and preparing for her voyage to London.' The ship having given up cruising went to Pcrnambuco to procure a cargo, but no! Itcing able to jirocure one there, ])roceeded to St. Salvador, and a k)ss liaj)|)eri('d befort; her arrival at llie latter port. A (jucstion was made whether the risk had conunenccd at Pei'nam- Sect. 1. J^t what Time or Place the Risk begins. 165 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 Pcrnambuco to procure a cargo, and having sent (i) f-ambcrt an officer on shore for that purpose, she must be considered as Marsh.^Rep. preparing for the voyage within the words of the policy, and i49; sTaunt. that therefore the policy had attached.'( 1 ) 480. Accordingly, where a policy was made on the 3d of Septem- At what ber, at New York, on a vessel ' at and from Guadaloupe to St. time a policy Thomas's,' and at the time of subscribing, the under Avriter was pJ^'J.e^c^Q^ ^ informed that the vessel was at Guadaloupe on the 28th of July, mences upon where she had in fact been for a long time before ; the court a ship which said, that ' in a case like this, the risk does not commence till some ^^^^^j'^'^ j^'"^ 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.'(2) But if the ship needs repairs (2)Kemblet>. merely, the risk will commence notwithstanding this circum- Kowne, i stance.(3) But the repairs must be made within reasonable time, r^^^^/i^^^^^^ and if there is any unnecessary and unreasonable delay, the ,.. Lond. Ass. policy will no doubt be forfeited on the ground of a deviation Co. i Atk. or enhancement of the risk. So if all preparation for the ^'^^• voyage be suspended, the risk will cease.(4) ^4% c^itty r. Where there are no peculiar circumstances, and a ship is in- Seiwyn, 2 sured at and from a foreign port, it has been decided in one case, Atk. 359. of a policy on a ship ' at and from Cape St. Francois,' that ' the risk commences after she has been safely moored twenty-four . hours' at that port.(5) But Lord Hardwicke was of opinion that J;^J^^e"i""^' in such case the risk commenced immediately on the arrival at Bin. 592. the port.(6) And conformably to this opinion it has been decided (6) l Atk. in New York, Mr. Justice Kent giving the opinion of the court, ^^^ . . , . that ' at and from, when applied to the ship, includes the period LudloVs of her stay in the port, from the time of her arrival there.'(7) Johns.Cas.iO. In the case last cited, it is decided that, at and /rom, when Goods insured applied to goods, means from the time the goods are put on at and from. board.(8) But Mr. Justice Heath says, 'the insurance commences /q\ g^g ^j^^ when the goods are put on board the boats,' for the purpose of Mellishr. All- being loaded on board the ship.(9) It is generally expressed in ""^t, 2 M. & the English policies, that the risk is to commence on the goods foN ^ ^ iv p being loaded on board.(lO) In French policies which contain no 435." such provision, the risk commences as soon as the goods are put (10) Park, 28. on board of boats, for the purpose of being loaded on board of the ship. Where this is the usual mode of putting the goods on board, it seems to be as properly a part of the risk of the voyage, as any other, and to be included, unless the policy expressly ex- cludes it. In policies on goods, the risk is often made (o commence from T^e risk to the time of loading them on board. The risk v.ould, it seems, cpmmeuce on commence at this time under a policy ' at and from' the place of ?°'^^^_ f™"! shipment. But still a policy in this latter form attaches, in some loadVn^*^ °^ cases, where one in the former would not. There have been a number of cases of the failure of insurances, in which the com- 166 The Voyage and Period of the Risk. Chap. XI. mencement of the risk was to take place from the time of the goods being loaded on board. 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. It was put upon the ground of a representation, as it is expressed in the case, though it appears to have been more properly a warranty, if either, that the goods should be laden on board at Genoa ; since in this case the goods being of a perishable kind, it could not be known that they had not pre- viously sustained damage, without examining them, and it was supposed that the state of the goods at Genoa would have been better known, had they been shipped there. The circumstance of their being put on board there, was accordingly considered (1) Hodgson to be requisite, to bring them within the terms of tlie policy.(l) r. Richard- Under another policy on goods ' from the loading thereof on j°°'^' , j^gj' board on the coast of Brazil,' and on the ship in the same man- 463. '- ner ; and no goods were put on board there, but the ship return- ed from the coast of Brazil with the same cargo she had carried thither from the Cape of Good Hope ; the court decided that the (2) Robertson risk never commenced on either ship or cargo.(2) t'. French, 2 A similar case occurred in New York. It related to a policy East, 130. Qj^ goods, 'beginning the adventure from and immediately fol- lowing the loading thereof at Vera Cruz.' The vessel, not be- ing 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 (3) Graves v. commcnce.(3) In this case Mr. Justice Livingston made a dis- Mar. Ins. Co. tinction between a policy on the ship, and one on the cargo, saying 2Caines,339; \]^qyc was a reason why in these circumstances the risk on the Co. ofV.' A. i f'argo should not commence, which did not exist in regard to the Condy's ship, for the ship was warranted seaworthy at the commence- Mar8h.247.n, ment of the risk, whereas there was no similar warranty in re- gard to the cargo ; the loading of the goods he therefore thought to be of importance, as their condition at the time would thereby be better known. This distinction was probably suggested by the above case of Hodgson v. Richardson, l)ut the case of Ro- bertson V. French makes no such distinction, the policy in that case being on both ship and goods, and the risk was held to at- tach on neither. There seems to be no ground for the distinc- tion, for the assured in a policy on goods must prove the loss to have ha)')[)ened during the risk, and the insurers are not liable for any loss that cannot be proved to have hapjicned after the commencement of the risk, which is equivalent to a warranty against any previous damoge or defect. /^^o• u J A number of judnjments have been given in conformity with (4) Richards i . . i ** *. i / s ° ,,. Mar. the opinions above cited. (4) Ins. Co. 3 Where, under such a policy, the goods, though not actually Johns. 307; shipped at the iiort, from the loadinj.-- at which, the risk was to Vrcdt.nhiirirh ' ' ' ' i i i ,i '. ,i • i-,- ^• r. (;rari<- 4 coiiimeiice, wcrc yet overhauled so that I lirir condition was satis- .lohns. 444. n. factorily asccrtniiied, the court still held that the risk did not Sect. 1. Jt what Thnc or Place the Risk begins. 167 commencc.(l) In this case, however, the court thought the loading (i) Spittar. at the port where the risk was to commence, was a material cir- }y°"'^™^"' ^ cumstance, andin etlect warranted in the policy, as it would di- ^q^^^^ jgg^ minish the risk from French capture. n. In another case, again, in which a similar judgment was given, the opinion depends upon the circumstance that it could not be known whether the goods had been damaged previously to the commencement of the risk.(2) In a subsequent case(3) the policy (2) Horneyer was upon ship and cargo from Landscrona to Wolgast ' at and j' ^^^^''^'"Ig""' from the loading of the goods on board the ship.' The goods ^^^ Nonnen'p. were put on board at Gothenburg, which circumstance was stated Kettlewell, to the underwriters at the time of subscribing. But if this pro- andNonnenr. vision be considered a warranty, a representation could not ^^^^■< ^^ ^^*' affect its construction.(4) The goods were overhauled and ex- (4) 'supr. 127. amined at Landscrona sufficiently to ascertain the duties due upon them, and to know their condition. The same is, however, said to have been done in the above case of Spitta v. Woodman, yet in that case the court decided that the risk did not com- mence, whereas this case was decided in favour of the assured. The circumstance of examining the goods in this case, could have been of but small importance on account of ascertaining their condition, as the insurance was ' free from average.' It could only have aftected the amount of the insurable interest, at the commencement of the risk. This circumstance was noticed by the court as distinguishing the case from that of Spitta v. Wood- man, but after all, it does not seem to distinguish it, for according to the reports of the two cases there appears to have been sub- ^ stantially the same, unloading and reloading of the goods in each. The court says that the period of time from which the responsibility of the underwriters is to commence, as to the goods, is as well fixed by a partial unloading and reloading at Landscrona, as by a more perfect and entire shipment. In both cases, therefore, there was a sufficient unloading and reloading to fix the time of the commencement of the risk. An insurance was made in New York ' upon all kinds of goods and merchandises laden, or to be laden, on board of the Rolla, beginning the adventure from and immediately following the loading thereof on board at Cagliari.' On the arrival of the ship at that place, all the cargo then on board, except some log- wood, 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 restowcd, and the ship pro- ceeded 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 ship- ped 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 ,^s jyiurrayr. spirit of the contract. The policy attached therefore only upon Col. Ins. Co. the salt.'(5) But if in this case, the goods had been landed upon lUohus. 302. 168 The Voyage and Period of the Risk. Chap. XL 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 poHcy. In a case upon 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 continuation of five former policies, specifying them. The goods had been put on board in Virginia, and it does not ap- pear that they had been reloaded at Gothenburg, but rather that they had not. Lord Ellenborough, giving the opinion of the court, said, that ' a very strict and certainly a construction not to be favoured, and still less to be extended, was adopted in Spitta V. Woodman. If there be any thing to indicate that a prior loading was contemplated 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 Gothen- (l)Bellr. burg.(l) Hobson, 16 This case shov/s 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 Ellenborough intimated, therefore, in Nonnen V. Reid, as to the importance of reloading for the purpose of fix- ing the commencement of the risk, seems in this last case not to have been strictly 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 London, but the court said ' they could not make the con- struction of a written instrument depend on the knowledge (2) Langhoru v.'hich (he insurers might happen to possess of the facts. '(2) V. Hardy, 4 A similar decision was aeain driven in the Kine-'s Bench upon " o.ti. r^ policy on goods 'at and from Gothenburg, bcgiiming the ad- venture from the loading thereof aboard.' They had been loaded at Christiansand, and not reloaded at Gothenburg. Lord Ellenborough, in giving the opinion of the court, said, that the commencement of the risk must be supposed to have been described ill this manner, to protect the insurers from liability on account of jircvious losses, and that construing the words from ' loading tlie goods on board' to mean the same as ' from the time of tluMr being on board' at the place named, would be giv- ing them no ellect, for this would l)c the construction without any such words. The opinion was that the risk did not com- (H) M.iiiMi V. nienco.(3) Allmiit, 2 M, Yet the principle which governed the court in putting this con- i .-. 100. slniction ii})on these words, had been rendered (juestionable, at Icnst, in a forrnf-r case, by the opinion of the same jutl^e. It was n])on a policy on goods ' at and from Pernambuco to Maran- ham, and at and from thence lo Liverj)Ool, ' beginning the ad- Sect. 1. At what Time or Place the Risk begins. 169 venture upon the said goods upon the loading thereof on board wheresoever.' The goods were a part of the cargo carried out- ward 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 Ellenborough said, ' It certainly throws some difficulty in the way of this construc- tion that it may probably aid in covering a damage which hap- pened before the commencement of the risk. But Avhen we consider that the assured is bound to prove that the loss happened within the limits of the voyage insured, that difficulty is in a en Gladstone great measure removed.'(l) i;. Clay, l M. From all these cases it is not easy to determine the construe- & S. 418. 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, they will not afiect the con- tract, if the policy provides any other way of ascertaining the time when the risk commences. In some of these cases thev have been considered to be mere description, since the policy was held to attach, although the goods were not loaded at the place named, and they are probably used merely as descrip- tion by the parties, in the greater number of instances. If the words constitute a warranty, or a condition, on a compliance with which the commencement of the risk is to depend, the sense must be, that the state of the goods is to be ascertained at the place named, and it would be a compliance with such a condi- tion, in this construction of it, to show in any way what was the state of the goods at such place. This might appear in some instances by the kind of goods, the character of the ship, the length of the previous voyage, and the sort of weather expe- rienced. A merely literal compliance with the words of the condition, by loading the goods on board at the place named, would not ascertain the state of some species of goods, such, for instance, as piece goods in boxes or packages. These words do not, however, seem necessarily to have any relation to the degree of risk, but if they are to be considered as a description of the risk merely, they would, if not complied with, defeat the con- tract, unless the policy afforded some other means of fixing the time when the risk should attach ; but if a particular place is named, the fact that the goods are on board at such place seems sufficiently to fix the commencement of the risk. The risk cannot commence on freight, or any other subject, Commence- until the assured has an interest, and one has no insurable in- ment of the terest in freight until he has done something towards earning it. '"'^^o^ Accordingly the risk on the freight for a specified voyage, com- "^^'^ ' mences at the time when an insurable interest in the freight ac- crues, and it has already been considered what circumstances will create such an interest.(2) Where the interest in freight (cy\ g has accrued previously to the time from which the insurers are to take the risk, the commencement of the risk on this interest 22 170 The Voyage or Period of the Risk. Chap. XL is determined by the same principle, upon which it depends in the case of an insurance of the ship or goods. Commence- Under a policy fro7n, instead of at and from a place ; the ment ot the risk attaches at the time of the vessel's sailing, that is, at the time risk from a of weighing anchor, and breaking ground for the voyage, with ^ ^^^' all the preparations completely made.(l) (l)Poth. h.t. ^ ^ i- J V / a. 63; Thel- lusson V. Fer- guEson, Doug. Section 2. Continuance and End of the Risk. 361 ; same r. Doug. 366. n.; It is provided in some policies that the risk may be continued Audley v. or renewed indefinitely, by the assured's paying the premium p 'nf-^s ?^ at successive periods,(2) or complying with other specified con- la'rr. M'Vicar ditions. Other policies contain a provision that the assured may 1 N. R. 23. put an end to the risk at any time at his election. (3) (2) Salvin v. j^ Great Britain policies for a certain time cannot be made East^^57l ^^^' "^ lo'^gcr period than twelve months. (4) But there is no such (3) Sullivan limitation in the United States. A policy was made on a vessel r. Mass. Mut. ' from Salcm to any place or places, backwards and forwards, F. Ins. Co. 2 round the globe one or more times, during her stay at all such 318. ' places, until her return to the United States,' at a certain pre- (4) 35 Geo. mium per month ; it being a voyage for seals and oil. It was III. c. 63. s. insisted, on the part of the insurers, that the duration of the risk ought to be limited by the usage of such voyages, other- wise it might continue as long as the vessel should exist as such. (5) Cleve- The court said they saw no objection to its so continuing.(3) land V. Un. gut in general the continuance of the risk is absolutely limited IvTss lie > ^"^ ^^^ policy by some time, or place, or event. 308. In the case of insurance for a certain time, there can be no doubt in regard to the termination of the risk, when the time of its commencement is once fixed. The risk may be described to be for a certain time, with a condition for its longer continuance. A vessel was insured for the term of twelve calendar months, with a provision that, ' should the vessel be at sea at the expiration of this period, the risk was to continue until her arrival at a port of discharge.' She was captured, and carried into England, under the pretence that she was bound to an enemy's port, and was detained at Bristol at the expiration of the year, whence, after being releas- ed, she pursued her voyage. On the part of the insurers it was objected to the continuance of the risk, that the vessel was not at sea at the expiration of the year. Chief Justice Parker, giv- ing the opinion of the court, said, 'A vessel is considered at sea (6) Wood r. -ivitiiin the common meaning of the term, while on the voyage, Co 14 Mass!* tihhough during a part of the time she is necessarily Avithin Rep. 31. some port.'(C) If ihe ri-fk be Insurance is sometimes made to a place having divers ports ; to Jamaica and if under such a policy the voyage is commenced, with the frf-nc rally, ii i„tpniioii of toucliintr at more than one of those ports, the ciues- (■t\<\n at the 111-1 • 11-^ 1 port of ar- '^'"" occurs, whether the risk termniates at the lirst or some sub- rival. sc(|ueiit port. Under a ])olicy on a ship and cargo, ' from Geor- Sect. 2. Continuance and End of the Risk. 171 gia to Jamaica' generally, with a provision that the risk should continue until the ship should be moored twenty-four hours in safety, a part of the cargo was destined to Montcgo Bay, and the rest to St. Anne's, both in that island. 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 said, ' Where a ship, insured to any par- ticular port of delivery, was forced into a different port, and Ci) Leigh v. there discharged a part of her cargo, and afterwards proceeded Mather, 2 to her port of delivery, the policy remained good. But where p^P^ 64 See a ship, under a general policy to Jamaica, and until moored also Camden twenty-four hours in safety, came to any port, and there volun- ". Cowley, 1 tarily remained, and discharged part of her cargo, this, in his 1^1-417; Bar- opinion, put an end to the policy, after remaining there twenty- Ass. Co. four hours, whether the policy was on ship or goods.'(l) Park, 64. A policy ' to two ports on the coast of Brazil,' is an insu- To two porta ranee to any two ports on that coast at the election of the as- of Brazil. sured.(2) Under a policy on a ship to 'Barbadoes and a market,' the To Barbadoei court said, the ' vessel may bona fide go from island to island, un- and a market. til her cargo is disposed of; but we do not mean to say that the (2) Vander- same construction is to be given to a policy in any other trade g,nith^*2 than that to the West Indies.\3) But an insurance to any island Caine's, 155. in the West Indies, some of those islands being hostile, will be (3) Maxwell limited in construction to those which are friendlv.(4) !,'■ /^^^'"^ooo ... . ,„ T-, ,ri T-. i"-! 1 Johns. JJj. A ship was msured irom JNcw York to Bourdeaux, Avith a pro- vision that if the ship should be refused admittance or turned ^^j-ned away awaj^ she might ' proceed to a near open port.' This gave the is permitted to assured permission, on the vessel's being turned away from proceed to a Bourdeaux, to substitute another port at which the risk should "'^^!" °P^" terminate. In regard to the port that might be substituted in such case, Mr. Justice Spencer, in giving the opinion of the ,^^ Neiison v court, said, ' the terms new open port must be considered as used De La Cour, in a geographical sense, and not as depending on the facility of 2Esp. 619. reaching a distant port, if the wind should happen to be favour- able. They admit of some latitude, but still there must be a limitation. Jf it be conceded that L'Orient comes within the expression, near open port^ in reference to Bourdeaux, it is per- haps as great an extension of the import of the words as ought (5-) Tenet v. to be allowed. We are of opinion that neither Falmouth, Ply- Phoen. Ins. mouth, nor Guernsey, can be considered a near open port to Co. 7 John*. Bourdeaux.'(5) ^^^• In an insurance ' to the vessel's port of discharge in Europe,' To t'ae ship'g the risk continues to the port where the vessel first breaks bulk, portofdis- for the purpose of discharging. Under such a policy the ves- j;''-^'"?'^ '° sel sailed from Boston to the Maesc, but the captain, understand- ing that the vessel and cargo would be confiscated, if he pro- ceeded to Rotterdam, turned to Gothenburg, to 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 cap- tured. The court said, ' When property is insured to a port of 172 The Voyage or Period of the Risk. Chap. XL (l)Coolidge r. Gray, 8 Mass. Rep. 627. (2) Stocker v. Harris, 3 Mass. Rep. 409. To Bilboa or a port of dis- charge. (3j Stephens V. Bev. Ins. Co. Mass. S. J. C. Essex, Oct. 1820. To he report- ed probably, 1 Pickering's Rep. To a port of discharge in United States. discharge, the assured has a right to obtain advice at his port of arrival respecting the markets, and to proceed to such port as promises the best sales, and is still protected by the policy ; not being obliged to discharge his cargo at the iirst port he makes ; in which opinion they were confirmed by that of several emi- nent underwriters. If the captain had broken bulk, or begun to unload at Gothenburg, that must have been considered the port of discharge.'(l) Where the policy was on ship, cargo, and freight, from the Canaries ' to any portor por/s in Spanish America,' the construc- tion adopted was, that the voyage terminated when the cargo was discharged, and that the policy would not cover a new voy- age undertaken from one port of Spanish America to another.(2) The court seems to be of opinion that the risk would continue to the last port of discharge. A vessel being insured ' from Beverly to Bilboa, or 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 po- licy 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. The ves- sel might have touched at Bilboa, and other ports, and finally have discharged at Lisbon. If this be the true construction of the policy, the legal effect would be the same, as if the voyage had been stated to be to the port of discharge in Europe ; omit- ting Bilboa in the description. In such case, breaking bulk at Bilboa for the purpose of discharging, and actually discharging a part of the cargo, would take away the right of going else- where on the outward voyage.' It was accordingly held that the risk on the outward voyage ended at Bilboa.(3) A ship being insured from the United States to Europe and back ' to her port of discharge in the United States,' cleared out from St. Ubcs, with a load of salt, for New York, on arriv- ing at which port, the captain immediately advised his owner at Hartford, of his arrival, and the owner, in reply, without any delay, ordered the captain to proceed with the ship and cargo to Middlctown, on Connecticut River. As the vessel could not proceed up the river with her whole cargo, she must be lighten- ed cither at New York, or at the mouth of the river. The cap- tain, after consultation, lightened her at New York, by discharg- ing about thiTc thousand bushels of salt into lighters, to be transported to Middlctovvn. The usual entry of ship and cargo was made at New York^as at the port of discharge, and the duties were 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, llecve, C. J. ' If the ])ort of discharge may mean a dif- iWrent jjort from the port of arrival, then to sucli dill'eiTnt })ort is the vessel insui'cd. And this ajJjXMrs most reasonable, that Sect. 2. Continuance and End of the Risk. 173 the agents of the assured may learn upon arrival at what port they can sell their cargo, and thus sail to the port of discharge, protected by the policy.' Six of the judges were of opinion that the risk continued to Middletown. Ingersol, J. ' As it strikes me, the entry at the custom house in New York, and putting a part of the cargo on board of lighters, makes New York the port of discharge.' Smith, J. ' The port of discharge not being named in the policy, gave the assured the right of electing one, but when he had once exercised the power, he must be bound by it. This election was made by clearing out for New York. Middletown But if there was still any doubt, the fact of entering at the cus- ins. Co. l tom house, and paying the duties, ought to be conclusive.'(l) Connect. And it was held, in another case, that the landing of 150 boxes J^^P;^^"*', of lemons at New York, while the ship was waiting for orders ^JiddiftowQ from the owner, the lemons being in a perishing state and likely ins. Co. l to be spoiled, does not make New York the port of discharge Connect. under such a policy.(2) And so it was held in regard to the ^^l^^fn r discharging of the crew in New York, and immediately ship- Hartford Ins. ping another to proceed to Middletown, on the owner's giving Co.i Connect, directions to this eifect.(3) ^^P- '^^^• The interest of the captain in a cargo was insured ' from Lon- on goods un- don to all or any of the ports or places in the East Indies, Chi- til arrived at na, or Persia, or elsewhere, on this or the other side of the Cape *'i^!^^^P°'^* of Good Hope, until arrived at the last place of discharge in the outward voyage.' The cargo carried under the charter- party was wholly discharged at Calcutta ; but the captain, hav- ing disposed of a part of his investment at Calcutta, intended to dispose of 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 was made whether the (4) Richard- risk ended at Calcutta. Lord Ellenborough told the jury that, son v. Lond. under these circumstances, Calcutta was ' the last port of dis- ^^^- ^°- ^ charge on the outward voyage. '(4) ^^^' Insurance being made on a ship " to any port or ports in the On the ship River Plate, until her arrival at the last port of discharge' in the *" ^^""^^^f* ,' .. 11 -Ti A IT port 01 dis- river ; the captam mtended to put mto Buenos Ayres, and dis- ehar£;e in the charge his cargo there, but hearing, after he came into the river. River Plate, that Buenos Ayres was in the hands of the enemy, he put into Monte Video, intending to discharge his cargo there, if the mar- kets were favourable ; 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 ^?.) ^^°^^ "• possession of the enemy.(5) EaT^SSS. The risk on the ship or cargo may be terminated by the ac- ,p, • k f complishmcnt of the object of the voyage short of the port of the ship ends destination. A ship was insured 'from Boston to Tonningen.' by a delivery 174 The Voyage or Period of the Risk. Chap. XI. of the cargo to The ship was compelled by stress of weather to enter the Elbe the consignees for safety, and she proceeded up to Gluckstadt. The consignee rhort^orthe received the cargo there. Mr. Justice Parker gave the opinion port of desti- of the court, ' that the voyage was completed by the consent of nation. the master and consignee to deliver and receive the cargo at (1) Shapley Gluckstadt, this being a substitution of that place for Tonningen. r. Tappan, 9 The object of the voyage, as understood by the parties, was to Mass. Rep. carry the cargo to Tonningen, and it was competent to the par- (2) Phillips r, ^^^^ ^° P"' ^^ ^'^'^ ^° ^^^ contract between them, by adopting Champion, i' Gluckstadt as the place of delivery.'(l) Marsh. Rep. But it has been held that the risk on a ship, insured for a fish- 402. 6 Taunt, jng voyage, was not terminated by the arrival of a part of her cargo, which was sent home by another ship.(2) The risks ends The risk ends when the voyage is given up. Goods were ir-'iverup!^ insured fi-om London to Revel, and the master of the vessel hav- ing intelligence, on the voyage, that there Avas an embargo on English vessels at Revel, put back for England, and a loss took place on the way thither. Lord EUenborough said, ' 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 (3) Blacken- abandoned, and the underwriters were discharged.'(3) And the ^A^'^r^'^""^^" ^^"^° J^^p^ ^^i^ in another case, ' There may be causes for a Camp.°454. ^^^^P Pitting back for a time, without any intention of abandon- See also Rich- iog her voyage ; as the approach of an enemy, or a temporary ardson v. embargo ; or as in a case which occurred before Lord Kenyon, 6 MasV'Re^''' "^^'^ere a ship bound to a port in the Baltic, found it blocked up 117, 121. ^J ^^^■f °n which she put back, but afterwards, on a thaw, sailed (4) Brown r. again.'(4) Vigne, 12 Jn a case of insurance ' to Gothenburg, and one port of dis- ^' ' * charge in the Baltic,' the captain, Avhile at Gothenburg, elected St. Petersburg as his port of destination, but after sailing, chang- ed his mind, and determined to go to Stockholm, and was cap- tured before altering his course for Stockholm, and while he was on the common course to both those places. The judges of the Firem^Tns Supreme Court, in New York,wcre divided in opinion on this case, Co. r. Law- ^^Lit in the Court of Errors, Chancellor Kent gave an opinion, fence, 14 supported by an elaborate argument, and examination of cases, Johns. 46. j}^at the master's determination to go to Stockholm put an end to New'vork '' ^^^ rhli, and, accordingly, that tlie insurers were not liable for Tns. Co. 3 any loss, subsequent to that determination. The other judges Johns. 94. concurred in this oj)iiiion.(.'j) The risk ends The risk ends wiien the voyage is intercepted and broken up, if the voyage by a peril not insured against. Insurance was made 'from New II broken up York to Bourdcaux, free from loss or detention, in consequence i/«ur!-y?i-"" ^^ prohibited trade.' The vessel was prohil)ited to enter at gainst. Bourdcaux. Chief Justice Kent said, ' The prohibition to enter, uiidrr llie special ])rovisi()n in the ))olicy, was e{|uivalent to an acliiai termination of the risk by landing the goods. '(G) On ilx- (.lii|) insurance is frccjuently made on the ship to a certain port, and ufitii moor, d c„„,j^ J.JJJ, ^^^ |^^.j.j| j]j^.j.^ moored twenty-four hours in safety.' hours iu I'liucr such a ])obcy, on a voyage to London, tlie vessel arrived •affty. Sect. 2. Continuance and End of the Risk, 175 at the wharf, where she was to unload, and was laid on the outside of the tier, there bqing no room on the inside. After lying there moored and lashed to other vessels, more than twenty-four hours, she was forced adrift by the ice and lost. Lord Kenyon was of opinion that she had been moored twenty-four hours in safety.(l) (nAnsrerstein But in the case of a vessel, that within twenty-four hours after v. Bell, Park, her arrival, was ordered back to quarantine, it was held that the ^^• risk continued during the quarantine, and consequently until she /^n Wanles should be moored twenty-four hours in safety, after the expira- Eameg, 2 Strl tion of the quarantine.(2) 1243. A brig, insured ' from Norfolk to a port or ports in the island The ship is of Jamaica, and until moored twenty-four hours in safety,' arrived considered in at Annato Bay, in that island, and anchored at the usual anchor- ^^^^^ though ing place, where vessels commonly load and unload. At the a gale. time of her arrival the wind was blowing a fresh gale, with squalls, and it contirmed to increase until the brig lost both her anchors, and was driven ashore and lost ; but she was not lost, nor had she sustained any damage, until more than twenty-four hours after coming to anchor. Chief Justice Parsons, giving the opinion of the court, said, ' if no loss, for which the under- writers are answerable, happen during the voyage, or during the twenty-four hours after, they are discharged. The vessel is (?) ^'^^ ^'• safe, within the terms of the policy, until she suffers a loss insured Mass\ep against.'(3) 313. " When a ship is insured to a certain place, without any provi- In a policy sion for the continuance of the risk twenty-four hours after she o" ^ ship to is safely moored, the most obvious construction seems to be, faf/^^fu^^"^il that the risk ends as soon as the ship is safely moored at the ends when port of destination,(4) and this is very distinctly implied in all the ship is the cases respecting the continuance of the risk during the first ^^teiy moored. twenty-four hours of her being safely moored. But the risk ('l)Ord. of does not end until the ship can be moored in the usual place. ^°"'l "^i^^ '^' A ship insured to Havana, came to anchor near the Moro Castle, de Com. a. ^ at the entrance of the harbour, where all vessels are obliged to 152; Bill i-. wait until they are visited by the health-officers, and those of the ^^^^on, 6 custom-house. It is not, however, considered a place of safety, ^^2^' ^^^' 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 Unit. 'ins!^'o. risk had not ended.(5) 11 Johns. 358! The risk on the cargo terminates on its being delivered to the The risk in consignee. (6) Goods being insured, '■ till safely landed,' were ^'ghters upon put into a public lighter, and the lighterman asked if he should u°tflVa"e7'''* stay to see the goods landed, and the assured replied that he landed. need not, but that he himself would look to the landing of them. rQ\ l^^ ,, The lighter being along-side of the wharf, was sunk during the Davy, 5 Bin. night with the goods on board. Chief Justice Mansfield said, ^95. ' The case depended on the point, whether the assured did not take the cargo into his own care and possession. It seemed to him that he did. He discharged the lighterman, and placed himself in the same situation as if the goods had been actually landed and delivered.' Heath, J. said, ' Every party may re- 176 The Voyage or Period of the Risk. Chap. XI. (1) strong r. nouncc SO much of a contract as is for his own benefit,' and he Nattally, 1 N. tj^oug^t t.hat in this case the assured, by his own conduct, ' re- (2) Sparrow nounced that part of the policy by which the goods were pro- V. Carruthers, tected till safely landed. '(1) But it is held, that where the policy 2 Str. 1236 ; jg on the goods until safely landed, and they are landed by Ex'^lss' Co^' public lighters, the risk continues on board of the lighters.(2) 2 B. & P. 430, In the case of a policy on goods from Nassau to Campeachy, 3 Esp. 289 ; ' till discharged and safely landed,' the goods were put on board T^"*^d^A«* °^ launches, for the purpose of being run ashore; it was held Co. 2 B. i: P. ^^^"^^ ^^^^ ^"^^'^ continued on board of the launches, this being the 432. n. tisual mode of carrying on the trade.{3) The risk These cases all proceed upon the principle that the risk con- continues on tinues on the goods insured to any place generally, until they are the goods un- landed at such place, provided the usual mode of landing them is til they are pursued, and there is no unnecessary delay in this respect, which landed, ii ^ , , ^ ^ , . . ^ ^ r ' they are land- would amount to a deviation. edinthe But the Consignee may terminate the risk, before the time usual way. when it would expire in the usual course under the policy, by (3) Matthie r. receiving the goods into his own care. But what act of the as- p°9o "^ ^' ^ sured or consignee will amount to a taking of the goods into his own care, and diverting them from the usual course of the trade, so as to put an end to the risk, depends very much upon the usage of the particular place. In most places there is not the same distinction of public and private lighters as at London, nor is this distinction of any importance, except so far as the em- ployment of one or the other shows that the consignee does, or does not, take the goods into his own keeping, and out of the usual course of the risk. The risk ^i the case of a policy on goods to the coast of Labrador, till continues on safcly landed, the vessel arrived on that coast the tAventy-second goods insured ^j^y of June, and the crew were employed in fishing, except at LabraW^*^ ° short intervals while they were landing such parts of the cargo as after arrival were Wanted, until the 13th of August, when the vessel, still there. having the principal part of her cargo on board, was captured by an American privateer. Lord Mansfield, and all the other judges were of opinion, that there was not more delay than the usage of the trade justified. The risk had not expired, because (4) Noble V. the assured had not had more than the usual and reasonable Kennoway, time, according to the course of the trade, for landing the Doug. 510. cargo.(4) Goods be- Goods being insured to the coast of Africa, ' till safely landed,' in- insured to thc vcssel lay on the coast, from the G(h of May till the 4th of the coast of Jijric waitinof for a return cartro to come down from the country, Sirica and . , ^ . . ^ nutii landed, ^^ '•'> customary ; and while so waiting was captured by a French the risk con- privatccr. Lord Kcnyon was of opinion, that the risk continued tinues on the ^q tlic time of the ca])turc, and refused to admit evidence that, (5) Parkinson ^'J ^'^^- "^'VCJ^ •'! tlicsc voyages, the risk continued on the goods r. Collier, but twrnty-four hours niter the vessel was moored. (5) Park, 470. \ f|ucstion conrcrnini,^ the terniinnlion of thc risk on goods The risk ends iosurcd, ' utitil thcy sliould be safcly landed at Leghorn,' was de- aTth<' Laza"'' '^''''''' 'i[">:i >hc samc principles. It being customary to land retto at Leg- good.-^. of (he kind insured, at thc Lazaretto, about a half of a horo. Sect. 2. Continuance and End of the Risk. 1 77 mile from the city, whence they were usually transported to the (i) Grade v. city in lighters at the risk and expense of the consignees ; it was ^'^V* ""^ S,°r' held that this was the landing contemplated in the ])olicy.(l) ^^^ ^j^^ Goods being insured, with a provision that the risk should con- Erowu r. Car- tinue '' twenty-four hours alter they were landed ;' a part of them stairs, 3 had been landed more than twenty-four hours, when both the ^^™P- '^1- goods landed, and those remaining on board, Avere seized as illicit. The nsk on and conliscated. The risk of illicit trade being one of those in- u°i°ii\'^veniy- sured against, the court held that the insurers were liable for the four hours loss. Mr. Justice Lansing, giving the opinion of the court, said, after they are ' The insurance being entire, we are of opinion that the risk landed, con- continued on the entire goods until twenty-four hours after a// after they are of them were landed. '(2) all landed. Insurance was made on a ship and the cargo, ' to terminate The risk to when she might receive on board a cargo or etlects, with the in- continue till tention of proceeding to the United States.' The risk was held cargo^islaken not to terminate on the ship's having received on board, from other on board, ships, a part only of her cargo intended to be brought to the United States.(3) Lord Ellenborough says, ' Although 1 have never hitherto met interruption with a policy by which the responsibility of the underwriters andsuspen- was suspended and the risk divided into discontinuous halves, ^!°^ °^ ^^® such a policy may doubtless be framed.'(4) And Chancellor '\ * T • ; tU *; • 1 1*1 <• (2) Gardiner Lansing says, that a risk once commenced cannot be apportion- ^, Smith i ed.'(5) This has been frequently said, but it must be under- Johns. C as. stood to have reference to an apportionment of the premium, I4i. since the policy may certainly be suspended and again revive. ^^/ ^^!^^"' Thus where a policy was on the cargo of the schooner Cath Mass.'Rep. arine, ' from Marblchead, to one or more ports in the West Indies, 539. and at and from thence to Marblehead,' while the vessel lay at (4) Macken- Cape St. Francois, a part of the proceeds of the outward cargo ^^^J'o camp. was lost on shore, in the possession of the consignee. The court 43i! held that this loss was not within the risks of the policy which (5) 2 Cainea' were confined to perils of the seas, and also that the property ^^^" '~' when lost was not of the description insured, namely, the cargo of the schooner Catharine.{6) But there can be no doubt that if (6) Martin r. the same property had been taken on board, and become cargo, Sal. M. Ins. it would have been within the risks of the policy. Though there ^°' ^^1^^^' v/as one premium, and one entire risk, that risk was suspended ^^* and divided into two discontinuous portions. It is the same in every case of insurance for the outward and return voyage against marine risks only, where one entire risk is described and one premium only given. The risk is interrupted and suspended, in like manner, where liberty is given to touch and trade during the voj^age, if in using this liberty, the goods sold or purchased are on land, at any time in the course of such trade, while they are the property of the assured. While the goods are not exposed to the perils assumed by the insurers, cither by not answering the description of the subject in the policy, or because they are not in a situation lia- ble to such perils, the risk is suspended and ceases for the time, but recommences on the goods coming within the description in 23 178 The Voyage or Period of the Risk. Chap. XI. (1) Bondrett V. Hentigg, 1 Holt, 149. (2) Pelly V. Roy. Ex. Ass. Co. 1 Burr. 341. (3) Col. Ins. Co. V. Lynch, llJohns. 240. The risk on goods is sus- pended, at an intermediate port, only while they are on shore. (4) Parsonn r. Ma-t. F. k. M. Ins. Co. C Mass. Hep. 179. the policy, and being again liable to the perils insured against. But the risk is not so interrupted in case of the goods being landed in consequence of the perils insured against in the poli- cy,(l) or where the tackle of the ship is on shore while the ship is repairing, or for any other necessary and usual purpose, in the course of the voyage-(2) That the risk cannot be apportioned without some express pro- vision,(3) accordingly means, that what is described as one risk in the policy, or in other words, that for which an entire premium is given, cannot be divided, and the difl'erent portions of it esti- mated at certain proportional parts of the premium. This sub- ject is considered under the head of return of premium. 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, being a part of the goods insured, for a certain quantity of pepper 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 dol- lars. The opium was accordingly landed. While they were occupied in weighing it, Dato demanded new terms of agree- ment, 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, in obe- dience to his orders, seized it by violence, the captain not having a sutficient force to resist them. Dato gave the orders, in pursuance of a previous design to plunder or cheat the cap- tain. 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, in giving the opinion of the court, said, ' The underwriters were discharged whenever the property was landed in good safety, whether at the termination of the voyage or at any intermediate port. The insurers, know- ing the nature of the voyage, insured the plaintiff" against the restraint and detention of princes, for Ihe purpose of disposing of the oulivard and procuring a rcliirn cargo; and while executing this purpo'^c, the properly was violently seized, while resting on the gunwale of the boat, at that time in possession of the crew. It may well be said that the pro])erty was never safely landed, and conse(juently, when it was lost, the loss was occasioned by a risk insured against. During the voyage the goods were as much protected by the policy, in the boats, while they were employed as auxiliary to the legitimate purposes of the voyage, as they were on board the shij). For all the purposes of the voyagr, boats so employed arc very reasonably considered as a part of the ship.X'l) Chap. XIL Deviation and Change of the Risk. 179 CHAPTER XII. DEVIATION AND CHANGE OF THE RISK. A. DEVIATION is the increasing or varying the risks insured against, without necessity or reasonable cause. Where the insurance is described to be on a particular voyage, in a policy the meaning of this description, as well as of the language used upon a voyage by the parties in other parts of the policy, must be ascertained the parties are by its general acceplation and the common usage. By a voyage fnfendthat*^ is generally understood the sailing from one port to another a\ ith the voyage all practicable, safe, and convenient expedition ; this being the shall be pur- usual way in which a voyage is performed. In some voyages, ^"ed mthe , -'. . 1 1 • 1 1 I • ./. o 5 usual manner, however, it is customary to prolong the risk by touching at inter- mediate ports, as in India voyages, or others of great length, or by delaying to discharge the cargo immediately after arrival, as in voyages to the coast of Labrador, or of Africa; a^^d the parties are supposed to be acquainted Avith such custom, and have it in contemplation when they make their contract. 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 be any departure from such course, or mode of conducting the adventure, where- by the risks insured against are varied or increased, it behoves the assured to justify such departure by showing either a usage in that respect, or a reasonable necessity for it. This he must do if the risks insured against are thereby increased or altered ; for what the assured or his agents may do is of no concern to the underwriters, any further than the risks they have taken upon themselves are aflected. A deviation is therefore not merely a going out of the direct or usual course of the voyage, but it comprehends unusual and un- necessary delay, or any other act of the assured or his agents, which, without necessity or just cause, increases or changes the risks included in the policy. But the assured may expose his property to any unusual or additional risks, provided the risks in the policy are not thereby increased or altered, or if it ap- pears that a loss by those perils could not have been occasioned, in any degree, by such extraordinary peril. Thus where insu- rance is made on the cargo for the outward and homeward voyage, and the insurers arc not liable for the risk of the goods on shore, at the port of destination ; however great the risk may be to which the assured may expose the goods while they are on shore, it cannot concern the underwriter, or affect the contract, as long as the perils insured against are not changed. The goods are in this case, for a short time, put out of the condition 180 Deviation and Change of the Risk. Chap. XII. in which the policy supposes them to be ; but when they come again within the conditions of the policy, the risk revives. So if the vessel has liberly to touch at sundry ports on the voyage, it is not a deviation to pass some of those ports without touchuig. In the first of these instances the goods insured are v.ithdrawn for a time from all the risks in the policy, in the last, a part of the voyage insured is omitted ; in one case the risk ceases for a certain time, in the other, that of performing a part of the voyage is not incurred. The risks insured against, to which the pro- perty is in fact exposed, arc not increased or changed, and ac- cordingly there is no deviation. It has been said, that ' where the risk is for one entire voyage the contract cannot be suspend- (!) Pelly r. ^^ ^^id revive again ; if it be suspended at all, it is detcrmined.'(l) Roy. Ex. Ass. But this doctrine seems to admit of exceptions. If the assured ^AA ^ ^^^^' P"^^ ^^^^ property for a time into a situation in which the insurers are not liable for a loss upon it, and afterwards it is brought with- in the conditions of the policy, and in such a manner that the risks insured against cannot possibly be changed, there seem.sto be no reason why the liability of the insurers should not revive. The assured relieves them of the risk for a time, that is, he dis- charges them from a part of the risk against which they agreed to indemaiify him, but this appears to aiibrd no ground for hold- ing that they are thereby discharged from all subsequent lia- bility. The insurers are not in general liable for the risk on goods carried upon deck. Suppose that a package of goods in- sured, should be carried on deck for a part of the voyage, but in such a manner as not in the least to embarrass the navigation of the shi[), and should afterwards be stowed in the hold, so as to be within the conditions of the risk ; although the insurers might not be liable for a loss upon the goods while they remained on deck, it seems to be a very strict construction to say that the risk would not attach on the goods when they Avere properly stowed. But there does not appear to be an}^ decision to this eficct; the incidental remarkr, of judges, on the contrary, seem rather to tend to the opposite doctrine. The preceding observa- tions must therefore be received rather as the suggestion of a query, than the statement of any established principle. That the risk may cease for a time and then revive again, cannot be doubted, as in the case of one entire risk for the outward and homeward voyage ; but whether there may be ^ny other in- stances of the interruption of an entire risk, and Avhat instances of this sort there may be, if any, is a matter of some doubt. A risk unnc- A new risk, not within the policy, may be incurred and run at ccssariiy in- the samc time that the risks insured against continue, and it is currcd iH not jjq^ ncccssary, in oi-der to prevent a deviation in such case, that it does not ^"*^ goods should, (lui-iiig tlie contuuionce ol such extroordmary chane;<;ihe risk, be wiihdrawn from the risks in tlu; policy. The nuistei- of ri3l<« insured ^ neutral ship left the ship's register and sea-letter at the Isle of agains , Fi-;incc, and so cxjiosed the ship to the risk of detention by the bclligei-cnls, for want of documents to show her neutrality, and it was held not to Ijc a change or increase of the I'isk in the na- ture of a deviation. But as these documents were left behind Chap. XII. Deviation and Change of the Risk. ' 181 through the fault of the master, the insurers were not liable for any loss occasioned by the want of them.(l) In this instance (i) Cleveland the assured incurred an extraordinary and unnecessary risk, v. Un. Ins. Co. which was not considered to be a deviation. The same doctrine ^J^^^^- ^'^P- oUu. bee has been adopted in other cases. (2) also llichard- But the enumeration of the risks, in the common form of the son v. Maine policy, is so comprehensive, that it is not easy to expose the Ins. Co. 6 property to any risks not insured against, without increasing or ^^^^' ^^' changing those that arc included in the policy. Under the com- (2) v. Supr. mon form of the policy, therefore, it will generally be true, that 124. exposing the property to any other than the usual risks on the same voyage or adventure, will in fact be altering or increasing the risks which the underwriter takes upon himself. But this is not always the case, and therefore it is necessary to keep in view I-/, °r "^If °-'' 1 • • • I 1 c \ • 1 • J i""^s 01 clevi- that a deviation is a change or enhancement 01 the risks insured aiion and ge- against. Where only a part of the usual risks arc included in the neral remarks policy it is of more importance to keep in view this distinction. (3) "P°" '^'^|*; The consequence of a deviation is not to make the policy Cou'e;. 29r; voicl^ hut to discharge the underwriters from their liability for 1 3 Mass. Rep. any subsequent loss.(4) Though a deviation is spoken of in ^47. some cases as vacating the policy ,(5) and in some as avoiding it,(6) ^J^ _ ^YoVd yet it is generally said to Jwc/mrgc the underwriters ; and wher- Kaymr840; ever the point has come distinctly before any court, it has been 6 Mass. Rep. held only to discharge them from all subsequent losses. The ^^ > J^^ .^ q" reason is not that the propert}^ is thcrei)y exposed to risks not Mass. Rep. insured against, nor that it ceases to be liable to the identical 447. risks that are insured against, both of which may happen as we (5) l Taunt, have seen without any deviation, but it is, that the risks within cg-)*4Esp 26- the policy are so affected, and varied, and confounded with others, park, 438 ; that it is impossible to show that a loss would have happened Condy's but for the deviation. Marsh. 203. n. A deviation is essentially different from a breach of warranty, ijifference be- which is the violation of an express or implied engagement on tweenadevi- the part of the assured, whereas the superinducing of additional ^''°n =^"d a and extraordinary risks, or the change of the risks insured against, ^'a^j-^ii ° * is not a violation of any agreement express or implied. Risks may be voluntarily incurred, as long as those assumed by the underwriter arc not affected. But when an extraordinary risk, not contemplated by the parties in making their contract, is of such a kind that it l)ccomcs impossible to say that it may not have indirectly contributed to a subsequent loss, occasioned im- mediately by one of the perils in the policy, the assured cannot thereafter show that he has sustained a loss by one of the perils insured against, as they were understood by the parties to the contract when it was made ; and unless he can show this, he is not entitled to any indemnity under the contract. If, for exam- ple, the vessel unnecessarily delays, or goes out of the usual course of the voyage, she is not after that time exposed to the identical sea perils, to Avhich she would have been exposed had she pursued the voyage expeditiously in the usual course^ The risks insured against become altered, and upon this ground Lord Mansfield places deviation, when he says, ' The true ob- 182 Deviation and Change of the Risk. Chap. XII. jection to a deviation is not the increast of the risk ; it is, that the party contracting has voluntarily substituted another voyage for that which has been insured.'(l) Chan"-eofthe Policies on goods generally describe them to be on board of ship. some particular vessel, and if the risk be unnecessarily changed (1) Lavabre by putting them on board of a different ship, it is a devia- r. Wilson, tion.(2) But if the vessel on board of which the goods are ship- Stets^'n^r. ' P^*^' ^^ ^^^^ °^ disabled, the goods must necessarily be tranship- Mass. Mut. ped.(3) And the loading of them on board of anotht-i- ship, in- F. Ins. Co. 4 stead of discharging the underwriters, may be requisite, in order Mass. Rep. ^^ prevent them from being discharged from subsequent losses, in (2) Millar, consequencc of the voj^age being voluntarily given over. It has 394; 1 Emer. been held to be the duty of the captain, in such case, to procure tfi^ 1 p " *' ^"otl^cr vessel to carry on the goods to the port of destination, 35l'; MoUoy ^^ ^^^^ ^"^"^ ^^ conveniently done, upon reasonable terms, con- b. 2. c. 7. sidering all the circumstances, and without any extraordinary s-ll- dela3^('4) Good*: on Insurers are not generally liable for the loss of goods stowed deck. on deck, since the goods are exposed to greater peril than if they (3) Pianta- were stowed in the usual manner.(5) But this seems to depend mour V. Sta- in some degree upon usage. The insurers on 40 carboys of 169' S C ^V '^i^^'iol objected to paying a loss, because the vitriol was stowed on T. R.6li.n. deck. Lord Ellenborough left it to the jury, to say, ' whether (4) Schieffe- it was usual to carry vitriol on the deck. If there was a usage v" i- t"^^V ^° carry vitriol on deck the underwriters were bound to take 9 John^.^kl. * not^ice of it.' And the other judges afterwards acquiesced in this opinion. (6) Insurance on a A policy was made on the ship Hero, ' during one month's re- ship safely maining in Portsmouth harbour, securely moored.' The ship moored. -^yj^g removed twice during the time, which was objected to as (5)Backhouse chanf{incr the risk, but Lord Ellenborough said, 'The terms of r k '>G^- ^^^^ policy warranted a removal from place to place, within the Ross v.* ' harbour of Portsmouth.'(7) Thwaite, Where there is a known usage as to the course, or touching fn^^l) ~f' ^^ particular ports, or any thing else in the conduct of the voyage, ». Edmundl^4 ^^e parties are supposed to be acquainted with such usage, and Camp. 142. have it in view when they enter into the contract. .See2Valin. It has been the uniform practice of the British East India 13 ' k\ Company, in hiring ships for India vo3'agcs, to reserve in the Vai. p. 397. charterparty the liberty of employing them on an intermediate tit. du. capi- voyacfc, from one port to another in India, and totally distinct taiiif.a. 12. n. j-j.^^,^ jj^^ principal voyage. This being the invariable mode of Wi-stmore G chartering vessels, it was understood that an India voyage, in- Esp. 109. eluded in it the liabilily of the ship to be employed on such in- Inttrmcdiate tcrmefjialc voyage. When insurance was made on a vessel for voyage. .,,j India vo3^nge, therefore, it wasmiderstood by the parties, and construed ]jy the courts, to be an insurance on the vessel, not only for a voyage to a port in the East Indies and back, but also for such intermediate voyage, if the company saAV fit to send the vessel on such a voyage. Accordingly it was held not to bo a deviation lo suspend the main voyage for this purpose, Chap. Xll. Deviation and Change of the Risk. 183 and the vessel continued to be at the risk of the underwriters during both the intermediate and the principal voyage.(l) /j-, Salvador It is the usage for English vessels, engaged in voyages from v. Hopkins, 3 Newfoundland, to fish on the Banks, or make a voyage to Que- Burr. 1707; bee or some neighbouring port, before they begin to take on (^^^fg".;^ ^'' board their cargoes for Europe. An insurance was made, Au- park, 83 ; gust 28th, 1807, on the ship Courier, her cargo and freight, ' lost Farquharson or not lost, at and from any port or ports in Newfoundland, to any p ^""j!!"^.' port in the United Kingdom.' The Courier arrived at New- Grant v. Pax- foundland in June, and was employed in fishing until the 13th ton, i Taunt. of October, when she began to take in her homeward cargo. 463; Grant r. She foundered at sea soon after sailing. It Avas contended that TaunT^iee. as the policy was on the cargo, lost or not lost, at and from New- foundland, the risk commenced on the first arrival of the ship or from La- at Newfoundland, and accordingly that the delay for the purpose brador and of fishing was a deviation ; or if not, the delay to commence Newfouud- the voyage was a deviation. Lord EUenborough said, ' It is notorious that ships in this trade, upon their arrival at Newfound- land, are either employed in taking fish upon the Banks, or take an intermediate voyage. This must be presumed to be equally in the knowledge of both parties. Things are presumed to go on in their ordinary course.'(2) (2) Vallance A case on a policy for a voyage from the same place came ''• Dewar, i before Lord Eldon. The policy was on fish, at and from New- *"^™P' "^ • foundland to Portugal. The ship arrived at Newfoundland on the 21st of July, whence she went to Sidney for a cargo of coal, and returned to Newfoundland in the beginning of October, where, before the 8th of November, she took on board a cargo of fish, with which she proceeded for Oporto, and Avas lost on the voyage. It was objected against the claim for the loss, that the voyage had been delayed, and the risk thereby increased. ' Lord Eldon said to the jury, ' I think the practice of the trade in this case is as capable of being received in evidence, as the practice in other cases in which it has been admitted. There is no doubt that the policy, prima facie, means the first cargo which shall be laden after the ship's arrival, but the underwriter must refer himself to the usage of the trade, which he is bound to know. The first question will be, whether there is such a usage here. If the evidence leads to this, that the ship may make an intermediate voyage of several years, it is too danger- ous for you to give it etiect. If several ships, belonging to a merchant, arrive together at Newfoundland, and finding cargoes for some onl}^, he bona fide sends the rest on an intermediate voyage, it seems reasonable; though studiously sending a ship on an intermediate voyage, out of her turn, would be a devia- tion. The second question is, whether this ship has been em- ployed otherwise than as the usage warrants. If yon think the usage does exist, if you think it reasonable, and if you think the ship acted bona fide in taking the intermediate voyage, you will find for the plaintiff'.'(3) (3) Ougier v. The case more paricularly referred to in the two last, was an Jennings, i action upon a policy on goods from England to the coast of ^^°^P" ^*^^'°* 184 ' Deviation and Change of the Risk. Chap. XII. Labrador, to continue until the goods should be discharged and safely landed ; and the vessels on arriving there, instead of tin- loading, were employed nearly two months in iishing, during which time a part of the goods remained on board. At the end of that time they were captured. On the assurcd's claiming the loss, it was objected that there had been an unreasonable delay in discharging the cargoes. Lord Mansfield said, ' that (juestion Avas to be tried by the jury, and could only be decided by know- ing the usual practice of the trade. Every underwriter is pre- sumed to be acquainted with the practice of the trade he in- (1) Noble r. gm-es, and that, whether it is recently established or not. It is Dou". 510,' ^^ matter if the usage has been only for a year.'(l) Two instances ^^ insurance of any particular voyage will imply the liberty do not make to touch at a port, if that be the usage, though the policy con- a usa^e to tj^jj^ j^o express provision for this purpose. (2) But it must ap- °ace ^ ^ pear that this course is so uniformly pursued that it may be prc- (2') Bentaloe sumed to be known to the parties, in the case of an insurance V. Pratt, Wal- of goods ' from Kingston to Aruba, and at and from thence back lace's to Kingston,' it was agreed ' that the vessel mieht take in the itep. o^. whole, or a part of her cargo at Coro.' The vessel took in a person at Aruba, to assist in purchasing mules at Coro, and in returning from Coro, she touched at Aruba to leave him. While she was there, the place was taken by the Dutch, and the vessel and cargo captured and condemned as prize. It was objected that the touching at Aruba, on the return, was a deviation. The assured attempted to prove that it was the course of the trade to stop at Aruba for a supercargo to assist in purchasing the mules, and in returning to call and land him. A witness stated (3) Martin r. ^^^q instances of vessels that had done so. But the court thought Conflv"s' °' ^^^ usage was not proved, and accordingly were of opinion that Marsh..l86.n. it was a deviation. (3) A vessel lies Under the voyage, as such, is comprehended the usual mode outside of the of taking the goods on board. A policy being made o;i a ship bar of the c ^^ j^^j from Oporto to London ;' the ship having taken in a part Oporto to take ^^ ^^'" Cargo withinside the bar of Oporto, went outside, to take in a part of in the rcmaindci", when she was driven to sea in a gale of wind, her cargo, and captured. It was objected that the underwriters had not been informed that she was to take in any part of her cargo outside of the bar. But it was proved to be usual to do so, when, from the state of the river, vessels could not conveniently loacl entirely withinside ; and though it appeared that in some policies ' at and from Oporto,' liberty was expressly e^iven to load (4) Kingston on either side of the bar. Lord Ellcnboi-ough held, ' that the un- iK Knibbs, 1 clcrwrit/^rs were bound, of tlu-mselves, to take notice of the 608. n, usage. (-1) The; parties I^"t any such usage as to the course of the voyage or con- may exclude ducting of the adventure, may be restrained by express provi- a nsaije byex- ^jons in the policv, and although no express provision is made aions in the du-ectly on the subject, yet il it appear Irom the tenor and policy. general provisions of the instrument, that the usual liberty is not inteiuled to be given, the char'irter of the voyage and the rights of the parties will be modified accordingly. Where the policy Chap. XII. Deviation and Change of the Risk. 185 on an East India voyage, contained expressions showing that the parties intended to exclude the risk of an intermediate voyage .^ i^avabre from one port of India to another, the court held such interme- ;, Vilson, diate voyage to be a deviation.(l) Doug. 284. Upon the principle that by the voyage in the policy, is meant The captain is a voyage prosecuted in the usual way, and with the customary ordered to chances and advantages in favour ot the underwriters, it has three^coursea been decided in an action on a policy upon goods ' from London instead of be- to Jamaica,' that the captain's taking one course to which he was ing left to limited by his orders, instead of being left to choose from three choose, difierent courses according to his discretion, was a deviation. It appeared that from a certain point in this voyage there were three courses, two to the south, and one to the north of St. Do- mingo, and that on arriving at this point, it was customary for the captain to use his discretion which of these courses to take, according to the circumstances at the time, sometimes one being preferable, sometimes another. In this case, however, the cap- tain was directed to take the northern course, for the purpose of calling at Cape St. Nichola Mole, there being, however, no liberty given in the policy to touch at that port. After passing the di- viding point, the vessel, while proceeding on the course for both Cape Nichola Mole and Jamaica, and before turning off to the former, was captured. Lord Kenyon was of opinion, ' that the underwriter was discharged, because the captain, under the com- pulsion of his orders, had taken this particular track, and was not left at liberty to exercise his judgment at the dividing point (2) Middle- for the benefit of all concerned. It must be taken for granted ^{^°jj(,3' 7 t^ that the insurer knew what was the common course of the trade, r. 153! See and expected that the most expedient voyage would be pursued also Carter t). by the captain, according to the emergency of the occasion.' S^^o^^* '^^^" And this was the opinion of the whole court.(2) ^249. If insurance be to two or more ports, the vessel may sail a vessel in- for either, or any of them, but they must be visited in the or- sured to dif- der in which they are described in the policy. Under a po- ferent ports licy on goods, ' from Liverpool to Palermo, Messina, Naples, and '"^fg ^^ 'tl Leghorn, provided the French should not be at Leghorn,' in- telligence being received that Leghorn was in possession of the French, the vessel cleared out and sailed for Naples only, and was captured in the Bay of Biscay. It was objected on the part of the underwriter, that, though it was competent to the as- sured to go to Palermo only, or after going to Palermo, to stop at Messina, without proceeding to Naples, because the order de- scribed in the policy would still be preserved, as far as the voyage was pursued ; yet he was not at liberty to omit either of the places first named, and go directly to a subsequent port ; for by so doing the course of the voyage is altered, and another course substituted for the one intended by the parties. It was in- sisted that it was no answer to say that the voyage substituted is better for the underwriter ; he is to judge of that when he enters into the contract, and it will be a sufficient defence for him, if the voyage proceeded on, be different from that which he contracted to insure. Lord Ellenborough thought ' that the 24 them 186 Deviation and Change of the Risk. Chap. XII. (1) Manden V. Reid, 3 East, 572. (2) Kane r. Col. Ins. Co. •e Johns. 264. See also Cross r. Shutliffe, 2 Bay, 220. (3) Andrews T. Mellisli, 5 Taunt. 496. (4) Coffin r. Newbpt. Ins. Co. 9 Mass. Rep. 436. Whether the order of ports as named in the policy must be fol- lowed though it is not the geographical order. (5) Beatson r. I la worth, 6 T. R. 5J1. voyage insured to Palermo, Messina and Naples, meant a voyage to all, or any of the places named ; with this reserve only, that if the vessel went to more than on€, she must visit them in the order described in the policy.' Le Blanc, J. said, ' The meaning of the policy is, that the ship may go to Naples, with the liberty to go there by the way of Palermo and Messina.' And the other judges were of the same opinion.(l) A similar opinion has been given in New York, in an action on policies upon a vessel and cargo, ' from New York to Antigua and thence to Curra^oa.' The vessel sailed for Curra9oa with- out touching at Antigua, and was captured. This was alleged to be a deviation. Mr. Justice Thompson gave the opinion of the court that, where the vessel visited more than one port, the the order described in the policy must be pursued. ' But the assured is not obliged to go to all the ports mentioned, but may go to only one of them.'(2) Insurance being made for a voyage from London to the ship's discharging port or ports in the Baltic, ' with liberty to touch at any port for orders or any other purpose ;' it was held that, be- fore choosing a port of discharge, the vessel might sail back to ports she had passed, but after determining on the port of dis- charge, she could touch at other places onlj^ in their order on the way to the discharging port.(3) Insurance was made on ship and cargo, ' from Newburyport, to one or more places bejT^ond the Cape of Good Hope, one or more times, for the purpose of disposing of the outward, and procur- ing a return cargo ; and at and from them, or cither of them, to the United States-' Under this description of the voyage, Mr. Justice Sedgwick gave the opinion of the court that, ' the vessel was authorized to touch and trade at the Cape, and to go to the Isle of France, and from thence to any other ports beyond, and return from such ports immediately to the United States, or stop at the Cape in the passage ; but not to sail from the Isle of France to the Cape, and again to return to the Isle of France. '(4) It has been held in one case that a vessel insured to succes- sive porls, must touch at those ports in the order in which they arc named in the policy, although this is out of the geographical order ; unless there is a usage to the contrary; for it seems that such a usage would authorize the touching at the ports in an or- der different from that in which they stand in the policy. A vessel insured ' from Gothenburg to Leith and Cockenzic,' put into Cockenzie first, which was about a mile and a half out of the course to Leith, the two places being about two miles distant from each other, and Leith at a greater distance from Gothen- burg. Evidence was admitted to show what was the usage of the trade, as to the order in which the ports were to be visited, which usage would have been of no importance in the case, and accordingly no proof of it could have been admitted, unless it would have justified a dcj)arture from the order in which the ports were named in the policy. The touching at Cockenzie first, was held (o be a deviation, (hough ihat port occurred first in geographical order from Gothenburg.(5) Chap. XII. Deviation and Change "^of the Risk. 187 The ground upon which a usage would authorize the assured to vary from the order of naming the ports in the poHcy, is, that a construction of an}'^ particular provision of an instrument, must be governed by the objects and general tenor of the in- strument. ' Where a policy is made upon a particular voyage, the usages relating to such voyage are implicitly referred to by the contract, and in a degree made a part of it. Accordingly the usage, whether it be to follow the geographical order or vary from it, is understood to be comprehended in the general descrip- tion of the voyage. It appears from the preceding case that the naming of ports in the policy in an order different from that in which vessels bound upon the same voyage usually stop, does not conclusively show that the parties intended to vary from the usage. Whether they so intended or not, will be a question of construction upon the whole instrument, considered in reference to the particular voyage insured, and the subject matter of the contract. 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 and stay at any ports whatsoever, for convoy or trade.' The vessel proceeded to Demerary, and from thence, after two days, ran down in sight, successively, of Tobago, St. Vincent's, and St. Lucf^, and touched at Martinique ; after staying four days there, she shaped her course for St. Thomas's, passing by St. Kitts, and in the night struck on the Anegada Reef, where she was lost. The cargo was saved, but damaged to the amount of sixty-two per cent, which loss was claimed of the insurers, who, in defence, alleged a deviation. They contended that the vessel was authorized to touch at ports only in their geographi- cal order, computing their distance from London ; or in the order in which they were named in the policy. The master had re- ceived no orders to proceed to Trinidad or the Spanish Main, after touching at Martinique and St. Thomas's. Witnesses said it was easy to run down to any islands or settlements to the lee- word, but difficult to beat up from the lecAvard islands to the Spanish Main, and that, if it Avas still intended to go to Trinidad, or the Spanish Main, or any island or settlement to the wind- ward, the beating up from Martinique or St. Thomas's for this purpose, would have been a deviation. They thought that the liberty of touching at any or all of the islands, must be taken by touching in the order in which they occurred in the usual course of the voyage, without going backwards and forwards. They said it was not usual to go to Trinidad and then to the Spanish Main ; that a vessel might make Trinidad from the Main in two nights, but that possibly a month might be consumed in beating up from Trinidad to Demerary. It appeared, therefore, that a vessel going to Demerary, and Trinidad, or Martinique, ought to touch first at Demerary. Chief Justice Mansfield ' was of opinion, that under these circumstances, and considering the extensive liberty given in the policy, the assured might take ^ 188 Deviation and Change of the Risk. Chap. XII. (1) Gairdner 1'. Senhouse, 3 Taunt. 16. Courts ■will not give a construction to the provi- ^sions of the policy, in re- gard to a liberty of touching at ports, narrow- er than the necessary im- port of the words. (2) BrajrgJ'. Anderson, 4 Taunt. 229. Ijibertj to touch at all jilaces, and for any jmr- pose, IB re- strained by construction. (.•}) F.avabrc V. Wilson, DoUL'. 2fM ; l/uii;horii i'. Alhiutt, 4 'i'auut. 517. the islands in the order most convenient to him.' And the ver- dict of a special jurj was in conformity to this opinion. But the same judge afterwards gave the opinion of the court that there should be a new trial, because ' it had never been dis- tinctly left to the jury, whether the vessel was in her voyage to Trinidad at the time of her loss.' He said, ' Though I was struck at the trial with the largeness of these words, giving liberty to the ship to go any where she pleases, it must be con- fined to the voyage insured, that is, to Trinidad and the Spanish Main. Otherwise, I do not see Avhere the voyage is to end. They might make it last two years, by going to every West In- dia Island except St. Domingo and Jamaica. The larger the words are, the more necessary is this construction, else the ship might trade without any limitation.'(l) But however large the provisions of the policy are, in giving a liberty to touch at ports, the court will give them effect to the extent of the obvious and necessary import of the words. In a case on a policy upon goods, for a voyage ' at and from Martin- ique, and all, or any of the West India Islands, to London, be- ginning the adventure upon the goods from the time of the load- ing thereof on board,' with liberty ' to touch and stay at any jjorts whatever;' the ship sailed from Martinique for St. Domingo, which was much out of the direct course to London. The pre- mium given was ten per cent, whereas the usual jM'cmium for the same voyage, by the Avay of St. Domingo, was eighteen per cent. It was insisted, in behalf of the underwriters, upon the authority of the preceding case, that there had been a deviation. Chief Justice Mansfield said, there was no getting over the words of the policy ; ' instead of all, you must substitute so7ne of the West India Islands, such as lie between Martinique and Lon- don ; you would make quite a new engagement. Though, from the difference of the premium, it is possible the underwriter may not have attended sufficiently to the terms of this contract, 3^et we cannot make new contracts for persons. '(2) In this case the vessel not only had the general liberty of touching at any poi'ts whatever, which might have been restrained by construction to the ports in the course of the voyage, but was also insured from all and any of the West India Islands. It was the plain and necessary import of this description of the voyage, that the ves- sel might touch at all those islands, provided she took them in their oi-dcr on a voyage that was to terminate at London. Tlic ])riiiciple of tiic decision in the preceding case, is, that the liberty to touch, or trade, or stay, though expressed to ex- tend (o all places for all purposes whatsoever, is construed to extend only to ports in tjie course of the voyage insured, and for purposes connected with the voyage. It authorizes touching at ports where ships bound on the same voyage do not usually touch, since this clause would othci-wise have no cf1"ect.(3) It there- fore autlioi'izrs going out of what is strictly the course of the voyage. Accordingly, when it is said that a general liberty of touching at any ports extends only to ports in the course of the voyage insured, the meaning is, that the vessel is not permitted Chap. XII. Deviation and Change of the Risk. 1 89 by this liberty to sail in an opposite direction, or to a port very wide of the usual course. A vessel insured from Hull to her port 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 pur- poses ; particularly at Elsinore ;' took goods to be delivered at Elsinore, Dantzic, and Pillau ; the last, being hcf 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 delivering goods, which was wholly unconnected with the object of the voyage insured.(l) (l) Solly v. A ship was insured from Para to New York, 'with liberty to g^^'^"^^ ^ call at any of the Windward or Leeward Islands.' The cap- tain called at two of those islands to learn the state of the markets, that his employers might be able to judge whether it was best to send a cargo thither from New York. Abbott, C. J. ' This calling at St. Bartholomew's and St. Thomas's, was for a purpose wholly unconnected with the voyage. It had reference /nNjr ^ to some new adventure.' It was accordingly held to be a devia- ,,. luid^ 4 b. tion.(2) & A. 72. But where the policy gives the general liberty of touching at General ilber- ports, the construction of this permission may be enlarged by ty ^o touch at the other provisions of the policy or the nature of the voyage fe^ndt^po/ts^' insured. A ship insured, ' at and from Antigua to England, with out of the liberty to touch at all or any of the West India Islands, Jamaica course of the included,' not being able to procure a full cargo at Antigua, sail- /^(^l*^'. ed to St. Kitt's, in order to complete her cargo there. St. Kitt's ^. p-^^j. 4 is out of the course of the voyage from Antigua to England. Camp. 123. Chief Justice Gibbs said, 'The policy appears to me to have (4) Hoggr. authorized the ship to go to St. Kitt's, and to remain (here till 444''"'''"' ^'^'"^'' her homeward cargo was completed. There is a liberty to touch (5) Elliot t-. at all or any of the West bidia Islands, Jamaica included ; this ^Viison, 4 shows decisively that they might be taken without any regard Brown's r.C. to their geographical order. Jamaica is at least 500 miles out of the direct course to England. '(3) A ship was insured ' at and from Lisbon to a port in England, Liberty to with liberty to call at any one port in Portugal for any purpose call at any whatever.' The ship sailed from Lisbon, southward, to Faro, p"^ P^'^V'^ to complete her loading. Lord Kenyon held this to be a devia- means a port tion, being of opinion that the policy only gave jjermission to in the course call at some port to the northward of Lisbon, and in the course ofthevoyagco of the voj^age to England. (4) Liberty to touch at a port named in the policy will not authorize Liberty to the touching at another, although it is no more out of the usual *ouch, extends course of the voyage.(5) port named. The liberty of using any kind of papers does not authorize Liij^rty to the going out of the course of the voyage to exchange papers, take any kind Insurance was made upon ship, freight, and cargo, ' from South of papers^ 190 Deviation and Change of the Risk. Chap. XII. does not au- thorize going out of the course of the voyage on ac- count of them, (1) Stocker v, Harris, 3 Mass. Rep. 409. Conditional liberty to touch. (2) Duerha- gen t'. U. S. Ins. Co. 2 Sere;. & Rawle, 309. (3) Bond V. Gonsales, 2 Salk. 445 ; Bond V. Nutt, Cov/p. GOl. "Warranty to pail with con- voy implies the liberty of seeking it. I^iberfyto join convoy must be iisrd with fheji-ast prac- ticalile intcfr- ruplioii of the voyage. America to the vessel's port of discharge in the United States, under whatever papers she might sail.' The vessel sailed for Havana from Vera Cruz, which port she had entered under Spanish colours, and Avith Spanish papers ; and she was captured by a British man of war, while on the common course to Ha- vana and the United States. The property was afterwards con- demned as Spanish at Jamaica ; Great Britain being then at war with Spain. The vessel could not have been cleared out at Vera Cruz, for the United States under Spanish colours, nor could she be cleared out without giving a bond to land the cargo at some port of the Spanish dominions. It was intended to re- store the American character of the vessel at Havana. In be- half of the insurers it Avas objected, that the sailing for Havana Avas a deviation. Mr. Justice Sewall, giving the opinion of the court, said, ' A change of the papers was expressly licensed by the policy ; but it would be an unreasonable construction to say that the assured had, under that license, an authority to en- gage the insurers in an unlimited voyage. The ship was de- stined to Havana, because one of the house happened to reside there. But if he had not been there, or had died before the arrival of the ship, then, by the force of the same necessity, a voyage to Tenerilie, had been equally excused. It is not that real and imperious necessity, which justifies a change of the risk.'(l) A conditional liberty to touch at a port must be taken advan- tage of strictly within the condition. A policy was made on goods, for a voyage from New York to Bremen, ' with liberty to enter a Dutch port, when informed on arriving on the Dutch coast, that it might be done with safety.' The captain upon ar- riving on that coast was informed, from two Dutch boats, that Amsterdam Avas not blockaded, and that he might proceed to that port ' without molestation from the British ;' and in attempt- ing to put in there he Avas captured by a French priA^ateer. This was held to be a deviation. Tilghman, C. J. ' The policy requires information that the port of Amsterdam might be en- tered xcith safely. To enter 7L-ith safely, it Avould seem necessary that there should be no danger from a)iy belligerent nation. It Avas immaterial from Avhat quarter the danger arose, Avhether from British blockading squadrons or French cruisers.'(2) A Avarranty to sail Avith conA'oy implies the liberty of seeking and joining convo}^, and consequently of going out of the usual course of the voyage for this ])urpose. The vessel may seek and join such convoy as is provided for the voyage insured. (3) If the |)olicy cx))rcssly permit the vessel to join convoy, this liberty, although it be given in the most general and comprehen- sive terms, must be used by joining convoy at such place as Avill occasion the least interi'uption of the voyage. A poHcy on goods for a voyage from Heligoland to Menul, gave liberty ' to touch at any ports or places Avhatsoevcr or Avhci'csoevcr, and to seek, join anrl exchange convoy.' 'J'lie vessel joined convoy at Goth- enburg. Bayley, J. said, ' J'f it had been proved that an earlier convoy migi)t have been procured at another place, and that, Chap. XII. Deviation and Change of the Risk. 191 notwithstanding, the captain had omitted to join it, in order that he might sail to Gothenburg, that might perhaps have been a ,,. AUnuttT case of deviation.'(l) M.& s. 52. It is not however necessary that the master should avail him- -pj^^ assured is self of the liberty to touch, trade, or stay at a port, or to join not obliged to convoy; as a vessel insured to several ports may sail to either use the liberty or any of them, provided they are taken in proper order, so the port° 'oVjoin- master may pass the ports at which the policy gives liberty to ing convoy. touch. Lord Ellenborough, speaking of the liberty to join con- voy, says, ' It is not introduced into the policy by way of stipu- . lation on the part of the assured, that they will seek and join tC Aiinutt, 1 convoy ; but is granted to them for their benefit, and for the M. & S. 51. purpose of obviating any doubt as to its being a deviation, in (i^},^,'"S ^'• ^1 u 1 ] ^ . r .u • 1 • 1*1 MiddletoAvn case they should go out 01 the way m seeking convoy; but 1 am j^^^ ^^^ j not aware that the restraining this liberty would vary the rights Connect. Hep. of the parties.'(2) 184. A vessel being insured from St. Ubes to her po7-t of discharge A ship waits in the United States, it was held not to be a deviation on arrival f?"" instruc- at a port in the United States, to wait there for instructions from '°"^" the owner for what port of discharge to proceed.(3) If the policy gives no liberty of touching at ports, it will be a It is adevia- deviation to stop unnecessarily at any port where vessels bound ^'^^ ^° f^°P ^* on the same voyage do not usually touch. Chief Justice Lee policy gives said, ' If the master puts into a port not usual, or stays an unusual no liberty for time, it is a deviation. '(4) this purpose. It has been said that an unnecessary deviation of a mile, or (4)Tierneyi). delay of an hour, Avill discharge the insurers.(5) But courts do ^//g^""^ °°r' not usually apply this principle with such rigid and minute ex- 343. actness, as to hold such a delay or departure from the course of (5) 9 Mass. the voyage to be a deviation. Circumstances like these are Rep. 449. most frequently considered as coming within the maxim, de minimis non curat lex. It cannot however be said that any un- necessary and voluntary delay, or departure from the course of the voyage, is excusable merely on account of the shortness of the time or distance. If the insurance be at and from a place, any unusual and un- (6) Earl v. necessary delay in commencing the voyage, after the risk com- Shaw, 1 mences, is a deviation.(6) i°J[t^^^' ^^^' Where the policy is on goods ' until landed,' any unnecessary /^n 'parkinsQ» and voluntary delay to land them is a deviation. (7) v. Collier, Under a policy on goods for a voyage from Dartmouth to Park, 470. Liverpool, the vessel put into Loo ; a place that she must neces- ' jq^ ^° °"^' sarily pass by on this voyage, but there appears to have been (8)*Foxt'. no usage, nor any liberty given in the policy, to touch at Loo. Black, Exeter Mr. Justice Yates held this to be a deviationr(8) rr/wss'^^'''" Goods being insured on a voyage from Dunkirk to Leghorn, /qn Xownson the vessel stopped at Dover to procure a Mediterranean pass. v. Guyon, Lord Mansfield held this to be a deviation.(9) Park, 438. The varying from the usual course of the voyage, and any If the master extraordinary delay, must be iustified by necessity, or it will be ^^.*® with good !•• • /v»' • faith the car- a deviation. In regard to what constitutes a sufficient necessity, ^j^g ^^^ bound different persons would no doubt entertain different opinions by his acts. 192 Deviation and Change of the Risk. Chap. XII- (1) Stockerr. Harris, 3 Mass. Rep. 417. The master must use his discretion ■within proper limits. upon the same facts. But it would be a very strict and illiberal construction, to hold a delay or departure from the course of the voyage, when it is expedient and necessary in the mas- ter's opinion, to be a deviation, because others, and more justly too, perhaps, should think it was unnecessary and inexpedient. Great weight is therefore allowed, to the fair and honest exer- cise of discretion on the part of the captain, in cases of this sort, as will appear from many of the judicial opinions subse- quently cited. Mr. Justice Sewall, speaking of a delay for the purpose of claiming the cargo which had been seized, says, ' The captain is the common agent of the concerned, and it is his duty to ma- nage their interests according to his best judgment. Whatever is fairly done, with this purpose, is within the course of the voyage.'(l) Upon the principle that, in extraordinary circum- stances, the master becomes the agent of all concerned, as far as he acts with good faith, and according to his best judgment, it is held that all parties, insurers as well as others, are bound by his acts. But to constitute the master the agent of the parties to this effect, two circumstances are requisite ; the occasion must be extraordinary, and he must act with good faith and a delibe- rate exercise of his judgment. But courts prescribe limits to this exercise of discretion on the part of the master, and it may be a deviation to go out of the usual course, though it be done for the purpose of expe- diting the voyage. A ship and the freight were insured ' from Boston to Gibraltar, and from thence to her port of discharge in the United States, with liberty to proceed to St. Ubes or the Cape de Verd Islands for salt.' On arriving at the Isle of May, one of the Cape de Verds, she found so many vessels there, that her turn to load would not have come in less than four or five weeks. The governor of the island proposed to the master to go to St. Jago and Fucgo for a cargo of provisions, and engaged that he should be loaded with salt as soon as he should return. This proposal was accepted by the master, who was thus en- abled to load his vessel sooner than he Vvould have been, had he remained at the Isle of May waiting for his turn. One reason given for accepting the governor's proposal, was the vessel's being short of provisions, which were scarce at the Isle of May. The vessel was lost in the homeward voyage. Chief Justice Parker instructed the jury, that if they were fully satisfied that the voyage to St. Jago and Fuego was undertaken for the purpose of expe- diting tiic loading of the vessel and the retui-n home, without any intention on the joart of the master to deviate from his voyage ; and that the retinm home was in fact expedited by that cii'cumstance ; and that the stay at the Isle of May for her turn to load would have been hazardous on account of the scarcity of provisions and water ; it was not a deviation. On a motion for a new trial the same judge gave the o|)inion of the court, ' That tj)(! vessf^l should iiave been sulliciently found at Gibral- tar, to enable her to stay and load at the Isle of May, without depentling upon |)rociwing provisions there,' and if she was not Chap. XII. Deviation and Change, of the Risk. 193 so, it was the fault of the master, which could not be alleged in excuse of a deviation. In regard to the expediting the voyage insured, the opinion of the court was, that '• masters have not a right to speculate in this manner upon the possible advantages of pursuing a route which does not belong to the voyage. They are to pursue the usual course, and let the consequences fall where they may.' Accordingly, the intermediate voyage to St. Jago and Fuego was considered to be a deviation.(l) The (i) Kettell v. principle of the decision seems to be, that this was not such an Wiggin, 13 extraordinary occasion as authorized the master to act accord- ^^^^' P" ing to his own discretion, in respect to departing irom the usual course of the voyage. A decision has been made in New York upon the same prin- ciple. A vessel was insured for a voyage from New York to Teneriffe, ' with permission to proceed from TenerifTe to the Isle of May and Bonavista, and at and from them, or either of them, to New York.' The vessel, on arriving at Tenerifle, was re- quired 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, however, after the arrival of the vessel, permission was obtained to land the corn, which constituted a part of the cargo. But the landing of it was delayed on account of the weather, during the thirteen following days, at the expiration of which, the govern- ment prohibited all vessels from New York, not having bills of health certified by the Spanish consul, from entering or landing their cargoes. The master then proceeded for Madeira, being the nearest port, where he landed and sold his cargo. The court said, ' There was no necessity for going from Teneriffe to Ma- deira. It was sailing on a diif erent voyage from the one insured. (2) Robertion The master went there to sell his cargo, and for the same reason ^^^^ g Johns, he might have gone to Lisbon. It was a voluntary deviation. '(2) 383. The cause for which vessels most frequently go out of the Making a. port regular course of the voyage, is to put into the nearest conve- to refit, nient port for the purpose of refitting after some disaster. The necessity of making a port to refit substitutes another track, in- stead of that described in the policy, and the contract applies to this new course, and the assured is obliged to pursue it directly and expeditiously, in the same manner as if the course taken from necessity had been that described in the policy, and con- stituted the voyage originally insured. (3) (3) Clark r. An insurance was made on the ship Eyles, ' the adventure to ^"^'^p ^^* ^ ^' commence thereon from her arrival at Fort St. George, and m^'ss. liep. thence to continue till the said ship should arrive at London.' 565; Guibert On arriving at Fort St. George, the ship was found to be leaky «'• Readshaw, and to require repairs, to obtain which the master, with the ad- jy^ji^Qj^^, q^^ vice of the governor, council, commanders of ships, &c. sailed jns. Co. 3 for Bengal. She was there repaired, and afterwards, on the Caines 108 ; homeward voyage, a loss happened, which the underwriters ob- o^p; j "^^^V*^- jected to pajang on the ground of deviation. Lord Hardwicke !^ \vaiter thought, that if the repairs could not be made at Fort St. George, Doug. 284. 25 194 Deviation and Change of the Risk. Chap. XII. and Bengal was the nearest and most convenient place to obtain r Lon'd^T"^ repairs, it was not a deviation, and said, 'he should consider it Co. \ Atk. ' equally the same, as if she had been repaired at the very place 545. from whence the voyage was to commcnce.'(l) A ship insured A question has been made whether a ship insured against only apinst «ea- a part of the usual risks, is still protected by the policy, if she protected'b'v ^^cp^I'^ through necessity, from the usual course of the voyage, the policy in A vessel insured from New Orleans to ports in the West Indies, seeking a port ' against sea-Hsks only,' departed from the course of the voyage to relit. tQ p^j jjj{Q Kingston, in Jamaica, in consequence of sea-damage, which rendered her unfit to continue on her course. Chief Justice Kent said, ' A deviation from necessity, will excuse the assured, in case of an insurance against a particular risk, as well (2) Robinson as in the case of a general insurance.'(2) No objection was, or r ^^9^\ h^^' ^"<^Ged could be made on account of this particular deviation, since gg ■ '^^' the departure from the course of the voyage was made neces- sary by the operation of the perils insured against ; the case therefore affords all the reason in excuse of the departure from the course, that can possibly be alleged in any case, however general and comprehensive the policy may be, in respect to the risks assumed by the insurers. The cargo is In the case of insurance on goods from the port of lading in loaded at France, to the United States, the vessel struck upon the bar, in stead of Ba- commg out of the harbour of Bayonne, and it became necessary yonne. to unload her and put back to Bayonne to repair; and after the repairs were made, most of the cargo was sent by land round (3) Wigginf. to Passage, whither the ship went to take it on board; and this m"""^^!? ^^ ^^'^^ alleged to be a deviation. It appeared that the master acted, 123!*' ^^" •*" respect to the loading and the time of sailing, entirely under (4) Cruder r. the direction of i\\Q pilot major of the port, who has the entire Phil. Ins, Co. control of ships lying at Bayonne. Mr. Justice Jackson, in Condy's giving the opinion of the court, said, ' In consequence of one of n. ; WinUirop ^hc perils insured against, it was found necessary and most for V. {Jn. Ins. Co. thc interest of all concerned, to send part of the cargo round to Condy'3 Passagc, to be there reladcn. If so, it is the same as if the ves- n.^'^Woolf i" ^^^ ^^^^ sailed from Nantes, or any other port in France, and had Claggett, 3 been driven by storms upon the bar of I3ayonnc. The master Esp. 257. might then have lightened thc ship, in order to carry her up to ^\. ^°^^'^'^' Bayonne, to make repairs, and might have unladen the cargo in Wharton's ^'^^ manner that circumstances should have rendered necessary Dig. p. 330. or most exjiedicnt. if he acted in such case with good faith h. t. 122. and sound discretion, there would be no deviation.'(3) The ship may A vessel having lost part of her crew, or of which the crew couMe t'o ro- ^^ disa])led by sickness, may go out of the course of the voyage cure'scamoiK t" obtain seamcn.(l) A ship in im- ^ vcssel may go out of the usual course of the voyage, or rainent peril may delay, for the j)urpose of avoiding caplure, or other im- of capture pending jjcril that is insured againsl.(.'>) Upon this principle it convoy '^ ^^^ ^^^" decided in New York that a sjiip, not warranted to sail with convoj'-, may yet go out of its course to join convoy, for the sake of protection against the imminent peril of capture. 7'hc insurance was on goods from Surinam to New York. The Chap. XII,. Deviation and Change of the Risk. 195 captain having cause to fear being captured by French priva- teers, and acting with good faith, stopped at Demcrary to join an English convoy, but he was blown out to sea, and so pre- vented from joining the convoy, and was afterwards captured by a French privateer. The claim of a loss was objected to, ^^-j Patrick f. on the ground that the going into Demcrary was a deviation. Ludlow, 3 Mr. Justice Radclilf said, ' It is no deviation to depart from the Johns. usual course of the voyage to meet with convoy, in case of real r^^'Q^y^j., danger, or to seek the safest Avay home ;' and Mr. Justice Kent, near v. Unit, said, 'Was the going to Demerary to seek convoy a departure Ins. Co. i without necessity, or any reasonable cause, from the regular and ^^^^ts, 592. , -•'? *' A T • • . • ^ • fcee Lawrence usual course of the voyage. A deviation to avoid an enemy is j._ ocean Ins. justifiable. It is no deviation to go out of the way to avoid Co. llJohns. danger.' The inquiry in such case is, ' whether the captain 141. See also acted fairly and bona fide^ and had no other motive or view but ^g^r"! Taunt' to come the safest way home or to seek convoy.'(l) 49 ; as to the It was held not to be a deviation of a Danish ship, during question hostilities between Denmark and Great Britain, to be put by whether sail- 1 111 ■ c t • r • } ina; without the assured under the protection oi an American irigatc, as a convoy is a ' pretended prize, for the purpose of avoiding British capture.(2) deviation. Lord Mansfield says, ' If the master ex justa causa goes out of (3) ^^^^y^- the way, as to refit, or to avoid enemies, pirates, &c. the insu- f^°^\ Bun^^' ranee continues.'(3) 350. In the case of a vessel's delaying to proceed on her voyage imminent from the port of Barcelona, Chief Justice Marshall said, 'No dane-er of cap- doubt was entertained that apprehension of danger of capture ^""""^ justifies from the Algerines, if the danger was real and immediate, or org^oui^outof the apprehension founded on reasonable evidence, would justify the course of the continuance in the port of Barcelona.'(4) the voyage. A similar opinion has been given in Massachusetts in the case (4) Oliver v. of a policy on goods, ' at and from Boston to Eastport.' The ^^^ '^Z^^.^^^' v vessel did not sail until a month after the cargo was taken on 493^ ' board, and she was captured by a British ship soon after going out of Boston harbour. The reason of the delay was fear of cap- ture, the harbour of Boston being constantly watched, at the time, by a British force ; and during the delay, the master took great pains to ascertain when he might sail with the least danger. ,\ Haven°i3 The court was of opinion, that ' the cause of delay was a justi- Mass. Rep. fiable one.'(5) " i'-- A vessel bound on a voyage from New York to Bourdeaux, A ship may sailed from New York throu2:h Long; Island Sound, instead of *^^«^^" """ ? 11 ■ usual course going through the Narrows, the most usual and convenient pas- to avoid cap- sage, but where the vessel might have been detained by British tare, ships of war, then lying off Sandy Hook. Mr. Justice Van Ness, in giving the opinion of the court, said, ' The ship must proceed on the voyage, in the shortest, safest, and most usual course. If the ship, without reasonable cause, leaves the cus- tomary track, the insurer is from that time discharged. But here we consider that there was a just and reasonable ground for such departure, though not an absolute necessity .'(6) Conf In's'^Co An English vessel bound on a voyage from London to Revel, 3 johns. 352." put back on receiving news of an embargo on all English ves- 196 Deviation and Change of the Risk. Chap. XII. (1) Blacken- hajen v. Lond. Ass. Co. 1 Camp. 454. (2) Graham r. Com. Ins. Co. 11 Johns. 35-2. The port of destination being ob- structed by ice, the ship may put into another port. The captain is compelled by the crew to change his course. (3) Elton r. Broden, 2 Str. 1264. (4) Driscol r. Bovil, 1 B. & 1'. :ji:i. (r,) Driscol r. I'assmori-, 1 B. Ai i'. 200. sels in the Russian ports. Lord Ellenborough told the jury, ' that though the ship from necessity might be allowed to take a circuitous course, yet the ultimate point of destination must ever be the same ; that such a necessity might perhaps even justify a return to England, if it could be proved satisfactorily, that it was the intention to seize the first favourable opportunity of re- turning to Revel.'(l) It was decided not to be a deviation, where the master, on a voyage from Carlsham to St. Petersburg, put into Revel, the passage to St. Petersburg being obstructed by ice. Chief Justice Thompson said, ' If the captain, in departing from the usual course of the voyage, acts fairly and bona fide according to the best of his judgment, to avoid danger, and has no other view but to conduct the ship and cargo to the port of destina- tion, the policy still continues.'(2) Where the master is compelled by the crew to change his course, it has been held not to be a deviation. A vessel, bound from Bristol to Newfoundland, having captured a prize, the cap- tain ordered some of the crew to navigate the prize to Bristol, intending himself to proceed in his own vessel to Newfoundland. But the crew refused to comply with his orders, and insisted that he should go back, though he acquainted them with his orders to proceed on the voyage ; and he was compelled to return to Bris- tol. The court and jury were of opinion that ' this was excused by the force upon the master which he could not resist,' and that it was not a deviation.(3) The barratry of the mari- ners appears to have been among the risks insured against in this case ; that is, the vessel was taken out of its course by a peril Avhich the underwriters had assumed. In the case of a ship bound on a voyage ' from Lisbon to Madeira, and thence to Saffi on the coast of Africa, and back to Lisbon ;' the crew being alarmed, while at Madeira, by the re- ports of Moorish cruisers off Saffi, quitted the ship, and refused to return on board unless the captain would promise to sail im- mediately for Lisbon. The captain accordingly complied, and sailed for Lisbon, on his arrivhig at which place, the charterers of the ship insisted on his proceeding directly from thence to Saffi, which he did, and the ship was captured in returning from Saffi towards Lisbon. Under a policy on the ship for the entire voyage from Lisbon to the other two ports and back to Lisbon, this was held not to l)e a deviation. The necessity under which the captain acted, justified changing his course. (4) And upon the same facts, under a policy upon the freight from Saffi to Lisbon, effect- ed when news had been received of the vessel's being at Ma- deira, and before it was known that the crew had compelled the captain to return to Lisbon, a special jury found that the in- surers were liable ;(.0) of which there seems to have been little ground of doubt. This case however turned mostly on the fjues- tion, whether the risk had conmienced. (.'iiicf .Justice Eyre said, ' TJiat the voyage did literally conmience there can be no doubt.' The insurers were liable, therefore, unless the delay occasioned ))y returning to Lisbon, amounted to a deviation, or Chap. XII. Deviation and Change of the Risk. 1 97 a giving over of the voyage insured ; and it was held that it did not amount to either of these. If compulsion is alleged in justification of a departure from To authorize the usual course of the voyage, such necessity must be clearly a departure shown. The master of a vessel being ordered by the captain ^rom the usual of a frigate, lying near him, to go out of the harbour and exa- ypyage^the * mine a strange sail that appeared in sight, complied with the order necessity must without any remonstrance. It was contended that, the captain be clearly of the frigate having ample means of enforcing his order, any shown, remonstrance would have been unavailing. But Lord Ellen- borough instructed the jury that ' this was a deviation.' He said, ' The master Avas not proved to have acted under any duress or compulsion. If a degree of force was exercised, which either physically he could not resist, or morally, as a good subject, he ought not to have resisted, the deviation was justified. But if he chose to go out with the hope of making ^,v p, prize, he could not thereby extend the risk of the underwri- Auldjo, 2 ' ters.'(l) Camp, '350. It has been held that the master may go out of the usual The master course of the voyage, to procure intelligence and advice, when may go out of any extraordinary circumstances make it very difficult to deter- ^"* course m • • u i ^ J rri , c 1 an extraordi- mme m Avhat manner to proceed. Ihe master 01 a vessel n^ry case for bound from Boston to Rotterdam, having notice on the voyage intelligence that, by the British orders in council, Rotterdam was placed and advice. under the same restrictions in respect to trade, as if it had been actually blockaded, put into Plymouth, in England, for intelli- gence and advice. Chief Justice Parsons said, in giving the opinion of the court, ' As this was done for good cause, and for .^. j the purpose of procuring intelligence and advice, his proceeding Gray 7 Mass. was no deviation.'(2) Rep. 349. A ship chartered for a voyage from London to Norfolk, in a vessel stays Virginia, there to take a cargo of lumber for London, being in- in port more sured from London to her loading port in Virginia, and back to Jm^",^ ^^^^ London, arrived at Norfolk with a cargo of salt in January, i^ke on board 1808, w^here an embargo was laid on vessels, and not taken off a return until March, 1809. The ship might have left Norfolk immedi- cargo. ately, it seems, with her outward cargo of salt, or in ballast, but the master staid until the embargo was taken oft', and long enough afterwards to take on board a cargo of lumber, with which he sailed in August, 1809. It was held that waiting until the em- J^,^^hom°?on bargo was taken off, and for the purpose of taking on board a 1' Moore 163. cargo of lumber, was not a deviation. (3) 7 Taunt. 462. A ship insured ' at and from Pillau to London,' needed re- The ship may pairs before being able to take in her cargo at Pillau, and de- delay for re- layed there for the purpose of making the repairs. After being P^'^* at the ready for sea, she was prevented from proceeding, for some time, {'jjg ^^^^ ^q^, by the lowncss of the water, on account of which she could not mences. pass over the bar. It was objected that this delay was a devia- tion. Lord Kenyon instructed the jury, that 'If there was any voluntary delay,' it would discharge the underwriters ; but he said it was ' not necessary that the vessel should be seaworthy at the time' when the risk commenced, from which he inferred J 98 Deviation and Change of the Risk. Chap. XII. (1) Smith V. Surridge, 4 Esp. 25. The ship de- lays at the port of desti- nation with the expecta- tion ol being admitted to entry. (2) Suydami', Mar. Ins. Co. 2 Johns. 143. (3) Gilfert v. Hallet, 2 Johns. Cas. 296. Delay for the purpose of succouring the distressed. (4) Lawrence V. Sydeboth- am,6 East, 54. (5) 2 Crauch, 258. n. (6) Bond V. iirig Cora, Condy's iMarsh.211.n. Delay, or going out of tlu; course to •ave property. (7) Ibid. that a sufficient lime might be taken for making the requisite repairs.(l) 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 so absolutely that the master had not some hope of ob- taining permission to enter. For the purpose of obtaining such permission he delayed there twenty-three days, and then sailed for another port, on the course to which a loss took place. Mr. Justice Kent, in giving the opinion of the court, said, ' The de- lay at St. Jago cannot be considered as amounting to a devia- tion, because it does not appear to be unreasonable or wilful. It was created by a probable expectation of permission to en- ter.'(2) If the vessel enters a port to dispose of the cargo, the master may s.ay there a reasonable time for this purpose although he meets with no success. A vessel put into Barracoa for this purpose, and remained there more than four months, during which time the supercargo made unsuccessful endeavours 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. (3) But it would evidently depend upon the circumstances of the particular case, whether a delay for any certain time would amount to a devia- tion. Delay or going out of the course to succour those who are in distress, has been 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 been often recognised by courts, for the reason that a justification resulting so directly from the plainest principles of humanity, and in the sufficiency of which the assured and insurers arc in general so much in- terested, has never been directly called in question. Mr. Justice Lawrence says, ' As to deviations for the purpose of succouring ships at sea in distress, it is for the common advantage of all per- sons, underwriters and others, to give and receive assistance to and from each other in distress.'(4) Chief Justice Marshall in- timates that stopping to relieve a vessel in distress is not a devia- tion.(5) Mr. Justice Washington says, ' If the object of the de- viation be to save the life of man, he will not be the first judge to exclude such a case from the exceptions to the general rule. The humanity of the motive, and the morality of the act, give it a strong claim to indiilgence.*(C) But it seems that delay, or the going out of the course, to save property, is a deviation. Mr. Justice Washington says, ' If the stoppage })c continued, or the risk increased, by adding to the cargo, or diminishing the crew, or by other means, for the pur- pose of saving the property found, 1 think the underwriters are discharged.'(7) The same is implied by Chief .Justice Marshall, ill giving the o|)inion of the court, whei-e, speaking of the salvage to ])r .'illowed to (he owners of a vessel which had saved another vessel and ciirgo, he says, 'The same rewards ought to be ex- tended to all, for a service designed to be encouraged ; and it is Chap. XII. Deviation and Change of the Risk. 19^ surely no reward to a man, made his own insurer without his consent, to return him very little more than the premium he had 0) Mason v. aayancea. (^i; . , , , , . 2Cranch,268. In case of the cargo's bemg seized, the master may delay m r^-^^ master port, for the purpose of claiming it, if there be any reasonable may delay in hope of succeeding in the claim. A ship entered the port of port for the Vera Cruz on the Hth of July, where she discharged her out- purpose of ward cargo, which was seized by the ofRcers of the government cargo. ^ on the ground of its having been illegally imported. The mas- ter remained there until the middle of December, for the pur- pose of obtaining a restoration of the cargo. Mr. Justice Sew- all, giving the opinion of the court, said, ' The captain swears that the occasion of his stay was the seizure of the cargo. With his owners and all interested in the car^o, the hope of recover- \~^ Stocker v. 1 , 1 ,. , V ' r , ,• ■ . Hams, 3 mg It, and the advantage oi the captam's agency m solicitmg Mass. llep. their claim, would sufficiently justify his stay. '(2) 409, It appears from the preceding cases, that if the vessel departs A. departure from the course of the voyage, or delays, the departure or de- from the lay must be limited by the purposes for which liberty is given i^av'^^must b ' in this respect in the policy, or on account of which the de- Hmlted by itg parture or delay takes place. If the vessel has express liberty purpose. to stop for intelligence, she must staj'^ only a sufficient time to obtain it. If she delays from a fear of capture, she must wait only as long as the ground of the fear continues ; and if she departs from the course to refit, she must proceed again on the voyage, as soon as she can be refitted. ' Unquestionably an idle waste of time, after a vessel has completed the purposes for which she entered a port,' is a deviation.(3) (3)7Cranch, If the vessel is in a port for the purpose of obtaining a cargo, ' she may remain as long as is necessary to complete her cargo, but it is scarcely to be supposed that this is to be regulated by any usage or custom. The usages and customs of any port or trade are peculiar to the port or trade, but the necessity of wait- ing where a cargo is to be taken on board, till it can be obtained, is common to all ports and trades. The length of time fre- quently employed in selling one cargo and procuring another, may assist in proving that a particular vessel has, or has not, ractised unnecessary delays in port, but can establish no usage y which the time of remaining in port is fixed. '(4) (4) Oliver v. It has already appeared that a general liberty of touching at ^aryi ins. a port, or ports, can be used only for purposes connected with ^qq^ ranch, the voyage. In case of insurance from Heligoland to Memel, with liberty to touch at all places, Le Blanc, J. said, ' If the master had gone into Gothenburg, merely for orders, whether he was to go ultimately to Anholt or Memel, it would have been a deviation ;'(5) for the calling to know whether he should pro- (5) 1 ^i ^^ g^ ceed to the port to which he was insured, or to some other, can- 51. not be for the purpose of expediting the voyage to the original port of destination. If the policy gives a general liberty to touch at a place, the The object of purpose for which the leave is given will be determined by the ^. general other provisions of the policy, and the nature of the voyage, touchat'a 200 Deviation and Change of the Risk. Chap. XII. port, is deter- mined by oth- er parts of the policy, or the nature of the Toyage. (1) Metcalfe V. Parry, 4 Camp. 1:23. "Whether liberty to touch involves that of trad- ing. (2) Stitt V. Warden, Park, 438-, 2 Esp. 610. (3) 1 Taunt. 45(>. (4) Sheriff v. I'otts, 5 Esp. 96. A ship takes in a cargo at a port to ■whicli she is driven by a storm. A ship was insured ' from Antigua to England, with liberty to* touch at all the West India Islands, Jamaica included,' without specifying the purposes for which she might touch. She stopped at St. Kitt's to take a part of her cargo. It was objected that the policy did not authorize this. Chief Justice Gibbs said, ' Does not the whole scope of the adventure, as described in the policy, show that the ship was to go about from island to island, if necessary, for the purpose of seeking freight ? What could be the object of the liberty given her to touch at Jamaica, if she could not stay there to take in goods ? Was she to go 500 miles out of her way for the mere pleasure of viewing that island, and asking for the news?'(l) A question has been made whether liberty to touch at a port involves that of staying or trading. This seems to be answered by.the principles and cases already stated ; by which it appears that the master must keep in view the purpose for which the policy gives the liberty, and also the expedition and furtherance of the adventure ; but whatever he does besides, whether he trades, or unloads and reloads his cargo ; if the risks insured against, are not thereby affected, the underwriters have no ground of exception. This is the general inference authorized by the cases on this particular subject, although some of them seem to favour a difterent doctrine. A policy was made upon goods, for a voyage from Whiteha- ven to St. Michael's, with liberty ' to touch and stay at any place or places whatsoever.' The ship Avas driven into Dublin by stress of weather, where she unloaded a considerable part of her cargo, consisting of coals. Lord Kenyon instructed the jury, ' that the unloading and selling the coals, though the ship was not delayed thereby,' was a deviation ; and he said, in an- swer to a question of the counsel, that the construction would have been the same in respect to a port where the vessel had express liberty to touch.(2) But Sir James Mansfield says, ' this was a sudden answer to a sudden question ; I wish his lordship had more fully considered it.'(3) Under a policy containing ' liberty to touch and discharge goods at Lisbon ;' goods were discharged at Lisbon, and another cargo was taken on board there ; but without any delay for this purpose. Lord Ellenborough said, 'This is certainly a devia- tion.'(4) But those two cases have been over-ruled. («) A case decided in the lime of Lord Mansfield, although not on a policy containing this lilicrty, yet seems to be a})plicable, since the same rules must govern the conduct of the master, whether he touch at a port under a liberty given by the policy, or from necessity. The policy was on a vessel, ' at and from St. Kitt's to London, warranted to sail with convoy.' After be- (o) By R:ilnn r. I>p,1I, East, 105, as Lord Klloroi]!:,''h saidinLa- roclio i>. Oswiii, 12 Kant, 1;5I. In <^iviii!:; liis opinion, in Raine v. Bell, ho said, ' Tliis case stands on its own ground.' Jint in fiarocho v. Os- uin. ho said, Stitt r. Wankdl, and Slioriir r. I'otts, had Ijccii over- ruled in Rainc v. Bell. Chap. XII. Deviation and Change of the Risk. 201 ing partly loaded she was driven by a storm out of St. Kitt's to St. Eustatia, where, after making an unsuccessful attempt to re- turn to St. Kitt's, she took on board the remainder of her cargo, and waited for the convoy. Lord Mansfield, and Justices Ash- hurst and Bullcr, held that the taking in the remainder of the cargo at St. Eustatia was not a deviation, on the ground that the vessel attempted to get back to St. Kitt's, and also that no time was lost. Mr. Justice Willes doubted, being inclined to the opinion that she should have proceeded directly towards Lon- don without waiting for convoy. The circumstance that the vessel took a different cargo from that intended to have been taken at St. Kitt's, had also some weight with him.(l) Though (i) Delaney Justice Willes did not agree with the other iudges as to the de- ^'- Stoddart, viation in this particular case, yet all the judges agreed in the gee also Gil- general doctrine, that the trading was not a deviation, if there bert v. Red- was no delay for the purpose, and the risks insured against had shaw, Marsh, not been changed. ^^^' In a case decided in Pennsylvania, a vessel detained by an A ship detain- embargo, unloaded and sold a part of her cargo, and it was held ^ ^^ ^^\^'{ that, if this was done while the vessel was necessarily detained, and^reloads! it was not a deviation.(2) In an action on a policy upon ship and freight, ' from the coast Dollars are of Spain to London, with liberty to touch and stay at any port taken on or place whatsoever,' it appeared that the ship was compelled to °^[ -where put into Gibraltar to obtain provisions, and while she was there the ship for that purpose, and without occasioning any greater delay, the touches, captain took in some chests of dollars on freight. On the au- (2) Kingston thority, mostly of Stitt v. Wardell, cited above, this was alleged l^^'n^'^'c to be a deviation. Lord Ellenborough said, ' If the taking in c. Condy's' the dollars materially varied the risk of the underwriters, they Marsh. 189. n. would be discharged by it ; but it did not vary the risk by oc- casioning any delay. I have turned in my mind whether the risk might have been increased by the particular kind of cargo, namely treasure ; if it were known to an enemy, it might hold out an additional temptation to seek for, and attack the ship. But I do not know that a mere temptation of this sort has ever been held a sufficient ground to avoid a policy, if the original act itself were lawful.' Mr. Justice Lawrence said, ' If Gibral- tar had continued a port of Spain, there is no doubt but that (3) Raine v. the dollars might have been taken on board without violating Bell, 9 East, the policy.' And it was adjudged not to be a deviation.(3) ^^^' In a case decided in New York on a policy upon a vessel, '^^f c^r%o is 1 *i, xi 1 11 1 I- i c sold while the and one upon the cargo, the vessel was compelled by stress ot ^j^- ^^ f^^ weather to put into St. Croix, and during her necessary dcten- repairs. tion for repairs the supercargo sold a very considerable part of i.-^) Kaue r. the cargo. This was alleged to be a deviation. Mr. Justice j j , 054 Thompson, giving the opinion of the court, asked — ' What injury could the sale occasion to the underwriters, provided it occa- sioned no delay ?'(4) A similar opinion was given respecting a policy on a ves- "^Vhile the sel from Stockholm to New York. Some sheep were taken ^^ip stops, on board at Stockholm, but the person having the care of them, taken in for 26 202 Deviation and Change of the Risk. Chap. XII. sheep which are carried in the vessel. (1) Cormack V. Gladstone, 11 East, 347. (2) Laroche r. Oswin, 12 East, 131. The vessel is used as a factory ship on the coast of Africa. (3) Hartley v. liuggin. Park, 468. See also Tenuant v. HfndtTson, 1 Dow, 334. Under a liber- ty to lake in .ilnck, the ves- sel t;tkf:s on board bul- locks and understanding that the vessel was to stop at Elsmeur, did not take in a sufficient quantity of provender at Stockholm ; he took some more on board at Elsineur, while the vessel was stopping to pay the Sound dues, and without occasioning any delay. This was objected to by the underwriters. Lord Ellenborough said, that, ' Not taking sufficient provender for the sheep is not like neglecting to take a sufficient crew, or tackling, or other neces- sary, relating to the equipment or navigation of the ship.' And as no delay had been occasioned, he thought the case came within that of Raine v. Bell, above cited. Mr. Justice Bayley said, it did not follow that the master would have gone elsewhere for provender, if there had been none at Elsineur. He might have thrown the sheep overboard.(l) In a case of insurance on goods, on board of a vessel under convoy ; just before the convoy made signal to sail, some goods were taken on board from a boat that came alongside. Lord Ellenborough said, 'The risk was not enhanced or varied,' by taking the goods on board, and accordingly it was not a devia- tion.(2) A vessel insured, ' at and from the coast of Africa, to the West Indies, with liberty to exchange goods and slaves,' remain- ed on the coast, from August to March, employed as a factory ship, that is, in receiving slaves for others, to be put on board of other ships ; it did not, however, appear that any slaves, the proceeds of her own cargo, had been received on board, and then put on board of other ships ; but her stay there was several months beyond the usual stay of ships in that trade ; though it is not stated that any delay was occasioned by this employ- ment of the vessel, unless this is implied in the opinion of the judge. It however appeared that factory ships are commonly thatched, which it seems this one was not. Lord Mansfield said, ' The single point here, is, whether there has not been what is equivalent to a deviation ; whether the risk has not been varied? It is not material whether or not the risk has been greater. If a ship is turned into a floating warehouse or factory- ship, the risk is different ; it varies the stay ; for while she is used as a warehouse no cargo is bought for her.' And the court seemed to be of opinion that this was a deviation.(3) In the case of an insurance from New York, to the coast of Africa, ' with liberty to touch at the Cape dc Vcrd Islands for stock, and to take in water ;' the vessel touched at Fuego, one of these islands, where she stayed seventeen days, during which time the master started a part of the cargo, and opened two bales, for the jjurposc of taking out a part of the goods, and took on board four bullocks and four asses, besides provisions and water. The usual time of staying at the Cape de Verds, for taking in stock and water, is two or three days, except when the weather is unfavourable, which it appeared not to have been in this case. The taking in the bullocks and asses was objected to, as a deviation. It is not expressly stated in the case that this occasioned any delay, but this was alleged by the counsel for the underwriters, and it was insisted also that they cncum- Chap. XII. Deviation and Change of the Risk. . 203 bered the deck, and thus obstructed the navigation of the vessel, more than the small stock usually taken in at those islands would have done; but the finding of the jury negatived this part of the defence. The opinion of the court was given by Mr. Jus- tice Johnson, who said, ' The question is, in what sense the term slock, Avas used ; and construing the license according to the subject matter, it could mean no more than permission to provi- sion the vessel with live stock, such as is usual on a voyage.' And it was adjudged to be a deviation. (a) A vessel and the freight were insured on a voyage, ' from The cargo is Teneriffe to Havana, and at and from thence to New York, with unloaded liberty to stop at Matanzas.' The vessel stopped at Matanzas '^^^iie the ves- to avoid British cruisers, then cruising between that port and fear ofYaV"'^ Havana, and as soon as the passage was safe, she proceeded to ture. Havana. She was afterwards lost between that place and New York. While the vessel was staying at Matanzas, the cargo was unloaded, but without causing any delay. This was relied upon as a deviation. Chief Justice Marshall, in giving the opi- nion of the court, said, ' Why is it a deviation ? It produced no delay, no increase of risk, and did not alter the voyas;e. Nothinsf ,^^ „ , can be found m this transaction, which in reason, ought to dis- Umon Ins. Co. charge the underwriters.'(l) 3 Wheat. 159. Goods being insured on a voyage ' from Plymouth to Malta, Under a with liberty to touch at Penzance for any purpose whatever;' liberty to the vessel took a part of her cargo at Plymouth, and the rest at *°"^^^ for any Penzance, and was afterwards stranded in the course of the vessel takes in voyage. In behalf of the underwriters it was contended that the a part of her taking in goods at Penzance, was a deviation. But the court cargo. held, that ' there was no ground for the objection,' and thought the case not worth being brought up for argument.(2) (2) Violett v. (a) Maryl, Ins. Co. v. Le Roy, 7 Cr. 26. The counsel for the un- flerwriters grounded their defence, among' other things, on a supposed increase or change of the risk, but Mr. Justice Johnson, in giving the opinion of tlie court, did not seem to think this essential to a devia- tion. He says, ' The discharge of the underwriters depends not upon any supposed increase of risk, but wholly on the departure of the assured from the contract. The consequences of such violation are immaterial to its legal effect, as it is per se a dischargee of the un- derwriters.' If by this is meant, that, where under the liberty to touch for a particular purpose, the master attends to other things during the necessary stay for that purpose, it is a deviation, though the risk is not varied thereby; the opinion is plainly inconsistent with all the preceding cases, excepting Stitt v. Wardell, and. Sheriff V. Potts, the latter of which Judge Johnson seems to suppose to be law, and adduces as authority ; though Lord Ellenborough, upon whose opinion it was decided, subsequently considered that it had been over- ruled. In a subsequent case. Chief Justice Marshall, speaking of this case of the Maryl. Ins. Co. v. Le Roy, says, ' The assured traded, and the delay was considerable and unnecessary; the risk, if not in- creased, might be, and certainly was, varied.' Hughes v. Un. Ins. Co. 3 Wheat. 166. Allnutt, 3 Taunt, 419. 204 Deviation and Change of the Risk Chap. XII. Under liberty Sir J. Mansfield says, ' It is doubtful, nor can he find it any to touch, the where defined, what is the precise meaning of liberty to touch, vessel stops to g^g 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.' But where the policy gave ' liberty to touch at the Cape de Verd Islands, Avithout expressing for what purpose, and at the time of subscribing the policy, the assured communi- cated to the agent who subscribed for the underwriter, that the object of touching there was to take in salt, it was held that stop- ping there for that purpose, and staying to take the salt on board, (i)Unquhart was not a deviation.(l) This case, as well as some of the pre- r. Barnard, 1 ceding, illustrates the general proposition already laid down, that where the policy does not specify the object of the liberty to touch, it must be inferred from the other provisions of the policy, the nature of the voyage, and perhaps also the representations of the assured, as far as they are consistent with the express pro- visions of the policy. The taking of The mere taking of a letter of marque, without the consent a letter of ^^ ^^^ underwriters, has been held in one case to be a deviation, in itself a de- The voyage was from Liverpool to Oporto. Lord Kenyon said, viation. ' It has been urged that this letter of marque was not really acted upon, but was taken merely for the purpose of being used on the homeward voyage. What the intention of the assured might be, I cannot pretend to say ; but it appears that the letter of marque was a general one, extending as well to the voyage out, as to that home. And though it is urged that it was never acted upon, and that the ship did not in fact deviate for the pur- pose of cruising ; it is enough for me to say that the captain had a strong temptation to deviate ; and that is such an essential alteration of the circumstances, from the condition of the vessel at the time of the insurance, as ought to discharge the underwri- ters. Gross, J. said, ' The risk of a mere trading shij) is dif- (2) Denison ferent from that of one carrying letters of marque. '(2) In a *'-,|^°^'g^'^"'' subsequent case. Lord Kenyon said, ' He understood that this decision had been doubted, though on a review he did not know that it had been improperly decided;' he however said, it 'was decided on principles that were new, and which went to the ex- (3) 6 T. R. trcme vergc.'(3) It does not appear from the case, nor from the •^^2. opinions of the judges, in what respect the risks were varied by taking the letter of marque ; and as Mr. Marshall remarks, upon (4) p. 282. b. this caso,(4) if an intention to deviate is not a deviation, still less I.e. 7. ». 6. jj, ^ mere temptation. The underwriters, it is true, expressly refused to give ilieir assent to it, but this only made the case the same as if they had not been consulted on the suljject. In a subscc|ucnt case of a policy on goods, from the Bahama Islands to Liverpool, the assured not l)eing able to procure seamen, in consequence of a notion prevailing among them that the enf'niy had threateiuul to li'cat as ])iratcs, the crews of every vessel that inade any resistance without having letters of mar(|ue, it being known that the vessel had guns on hoard for the pur- pose of defence, })rocurcd a letter of marque, to quiet their ap- Chap. XII. Deviation and Change of the Risk. 205 prehensions, and induce them to ship. There was no intention of using the commission for the purpose of cruising or making reprisals; and the captain was instructed not to cruise. No certificate of clearance, such as was required by law, to author- ize cruising, was taken out for the vessel. The captain, how- ever, cruised, and in so doing, committed an act of barratry. It was held that the taking the letter of marque was not a de- viation, but the judges distinguished this case from the preced- ing, by the circumstance that the letter of marque was not a legal commission for cruising.(l) ^^-^ j^^^^ ^ The question whether taking a letter of marque is, in itself, Byrom, 6 T. a deviation, has come before the Supreme Court of Massachu- ^- ^'79- setts. Mr. Justice Jackson, giving the opinion of the court, said, ' The authority of Dennison v. Modigliani, has been very much shaken ; and if the question were now new, it would be . difficult to support that decision, upon the reasons there given, or upon any other that had been suggested in the argument,' in the case then before the court. And the court accordingly were of opinion, that the taking a letter of marcjue was not, in itself, a deviation.(2) Chief Justice Parker, afterwards, speak- (o) Wig-^in v. ing of the last case, in giving the opinion of the court, says, ' It Amory, 13 was decided in Wiggin r. Amory, that the mere fact of taking Mass. Rep. a commission as a letter of marque, without the knowledge or consent of the underwriter, had no eft'ect upon the policy, the . court not admitting the doctrine that a temptation to deviate Boardman" 14 avoided the contract, as was laid down in Dennison v. Modig- Mass. Rep'. liani.'(3) 14. It accordingly appears that the mere fact of the vessel's tak- a letter of ing a letter of marque, without any express liberty for this pur- marque must pose, is not, of itself, a deviation. But if a commission of let- J?^ ^^^^ °°^y ler of marque be taken without the consent of the underwriters, uniegg the^po- or if leave be given to take it in the policy, without any pro- licy author- vision in regard to the use which may be made of it, the ship is izes a different authorized to use it only for purposes of defence. use of it. Cruising, for ever so short a time, without any liberty being given in the policy, was long ago held by Lord Camden to be a deviation, and was so considered by a special jury of mer- chants.(4) (4) Cock v. A ship was insured with a warranty that she should be arm- p ^"^440 ed, but without any liberty to cruise, or any mention of a com- ' mission of letter of marque in the policy. In the course of the voyage she gave chase to an enemy, that hove in sight, and af- ter a chase of seven hours, during which she once lost sight of the enemy, the two ships had an engagement. It was agreed on all hands that under these circumstances, the ship was not authorized to cruise \ but several witnesses said, that, according to the usage, vessels carrying letters of marque, might chase an enemy that hove in sight. It was admitted on the part of the insurers that if an enemy came in the way, the ship must defend herself; but contended, that if the letter of martjue lost sight of the enemy, that was no longer chasing, but cruising. Lord Mansfield left it wholly to the jury, on the ground that it 206 Deviation and Change of the Risk. Chap. XII. was a question of the usage and common understanding in (1) Jolly t'. such cases. The jury found that it was not a deviation.(l) AVaiker, In another case a witness stated the practice to be according Park, 448 ; ^^ j-j^j^ finding. The question was put upon the same ground of Brid'^eDouo-. usage, in a subsequent case, on a policy upon a ship from Liver- 527.'' ° pool to the coast of Africa, and thence to the West Indies, *• with or without letter of marque.' While on the coast of Africa, and without going out of the way, she took a prize, which she sent into Liverpool. Soon after, while pursuing her course, she saw a Spaniard to leeward, whereupon she altered her course about a quarter of a pointy and pursued the Spaniard about a quarter of an hour, when she abandoned the chase, and continued her voyage, in the course of which she was after- wards wrecked. Lord Ellenborough said, in giving the opinion of the court, ' It was contended on the part of the assured, that these words authorized the ship to chase vessels descried in the course of the voyage at whatever distance, for an indefinite pe- riod of time, in whatever direction ; and on that of the insurers, that the policy having designated a mere commercial adventure, the liberty of taking a letter of marque must be construed with reference to such adventure, incorporating therewith such hos- tile risks as might arise from the use of the letter of marque, for purposes originally and ultimately of a defensive nature. In the absence of any determination on the effect of such words, and where the words are susceptible of different meanings, it may be material to ascertain, as a question of fact, in what man- ner parties have acted upon them in former instances, and whether they have obtained, in use and practice, any known (2) Parr r. and definite import.'(2) Anderson, 6 Accordingly, the case was brought before a special jury who rrf p-^t^*4'n ^^^^^ ^^ '^o be a deviation ;(3) which agreed with the instruction K ) «ir , o . gj^,g|^ ^y ^j^p judge on the original trial, namely, ' that if the jury believed the changing the course was for the purpose of hostile capture, he thought the mere liberty to carry a letter of marque, without more, would not justify it ;' but that it would ifX^ ^^^*' ^^ justifiable if it was a defensive measurc.(4) Insurance was made upon goods on board of the ship Volant, from France to the United States. The Volant took a commis- sion of letter of marque at Bayonne, without any leave for this purpose in the policy, and in the course of the voyage, recap- tured the Criterion, an American vessel, that had been captured by the British. The time taken in making the capture, and put- ting a prize crew on board, was between two and three hours. ' In making the capture tiie Volant did not chase the prize ; nor was there any departure from her course, nor delay of her voy- age, except what was occasioned by taking possession of the prize, and exchanging the men.' There was testimony tending to show that the Volant at first attemjited to escape fron) the C'rili rioii, from an apprehension of her being of superior force, or fi-()in a desire of avoiding an engagement. The prize was sent into a i-'i-cnch port. 203 Chap. XII. Deviation and Change of the Risk. 207 Mr. Justice Jackson, giving the opinion of the court, said, ' Although the taking the commission may not vitiate the policy, yet the using of it for the profit of the owners, and the taking of a prize, is a deviation. Jt can make no difference whether the ship goes out of her course to seek the prize, or only aban- dons her course to make the capture after seeing the prize ; whether this abandonment be by altering her course, or by laying to ; or whether the time devoted to this object be one hour or one month. If the line is not drawn here, it will be impossible to say to what extent a ship, under such circum- stances, may depart from the regular course of her voyage ; and the underwriter upon a common mercantile voyage will be ex- posed to hazards as great, as when he expressly agrees that the ship may take a commission and make captures.' ' There is no doubt that the Volant, Avhether she had a letter of marque or not, might have beaten off any ship that should have attacjccd her, without prejudice to this insurance. This would have been necessary to have accomplished the objects of the voyage. But in the present case this object was fully an- swered as soon as it was ascertained that the strange ship was not strong enough to take the Volant, or that she would not at- tempt it. All that was done by the master afterwards, was not for the purpose of prosecuting the voyage with more safety and despatch, but with a view to another and distinct object ; with a design to acquire gain as a privateer or cruiser, and to derive a profit from her commission and guns, instead of using them merely to defend the ship, and advance the voyage insured.'(l) (l) Wig-gin v. In a subsequent case upon a policy on goods in the Volant, ;Amory, 13 f ^u • ■ *i r . -.u *u 1 r Mass. Rep. lor the same voyage, compnsmg the same lacts, with the addi- ^o^j ggg j^ig^ tional fact that the underwriter knew of the vessel's having a AViggin v. letter of marque. Chief Justice Parker gave a similar opinion Amory, 14 of the court. He said, ' After some doubt, we are all of opi- ^^°^' ^^'P* ^' nion that the knowledge that a vessel is armed, and has a com- mission, does not necessarily carry with it an assent that her commission shall be used except for defence. It may be that she is armed only for the purpose of defence, and that her com- mission is to be used only to justify the attack of such vessels as may come in her way ; and possibly the capture of such ves- sels, if that can be done without delaying the voyage. The knowledge of such armament and commission cannot amount to an assent that any deviation from, or delay of, the voyage, should take place in consequence of the new character of the vessel.' Upon this construction, and also upon the principle that parol evidence cannot be admitted to vary the terms or change the effect of a written instrument, the court held that the stopping to make the capture was a deviation.(2) (2) Wiggin v. It is to be kept in mind that the principles and reasons stated Boardman, 14 by the judges in these cases, proceed upon a construction of -.^~^' '^^' the testimony, that is, upon a supposed fact, that the master of the Volant had, in making the capture, done acts which could not be referred to motives of defence. In a suit commenced by one of the shippers by the Volant, for the same voyage, against 208 Deviation and Change of the Risk. Chap. XII. (1) Gray r. 'riiorndike and others. Sup. Jud. Court. Mass. Suff. Nov. 1817. (2) II:ivcn r. iioll-aixl, '2 JVLlSOII'H Jicj) the owners of the vessel, for thp misconduct of the master in stopping to make the capture, and thereby defeating the insu- rance on the goods, testimony was introduced to show, and it was urged in argument, that the Criterion, had she not been captured and sent into port by the Volant, might have given in- formation to British cruisers, that would have induced them to pursue and capture the Volant. The agent of the shipper at Bayonne, approved of the vessel's taking the letter of marque. In this case the jury were of opinion, in compliance with the instructions of Chief Justice Parker, that the stopping to make the capture did not render the owners of the ship liable in da- mages to the owners of the cargo.(l) In a subsequent case upon a policy on a part of the Volant's cargo, for the same voyage, the jury were of opinion that the master was actuated by the purpose of self-defence in capturing, and sending the prize into port. The principles laid down by Mr. Justice Story, in his instructions to the jury, agree substan- tially with those just recited. He, however, gives the captain a greater discretion, and puts a larger construction upon the acts that he may do in defence of his vessel. He said, ' Whether a vessel be commissioned or not, she has a right to repel any at- tempt of an enemy, and to protect and defend herself by all reasonable precautions against a meditated hostile attack. If a vessel, supposed to be an enemy cruiser, be in sight, and appa- rently intend an attack upon a merchant vessel, the master of the latter is bound to exercise his best skill and judgment as to the time and mode of his defence, and if he act honestly and fairly, he will l)e justified, whatever may be the event. He is not bound to make his escape in the first instance, and on failure of this to meet the enemy. He may lay to, or chase the enemy, if he deem that the most effectual way to secure his object. The only question, in cases of this nature, is, whether what is done is fairly attributable to a mere intention of self-defence, or to motives of another nature — such as a desire of profit — if the latter, then it is a deviation.' In regard to taking possession of a prize, he said, ' If the capture was made in self-defence, the master had a right to take possession of his prize, and if, with- out injuriously weakening his own crew, he could m.an the prize, he had a right so to do, and the delay for this purpose was not a deviation. He had a right to make the capture ellcctual to prevent the enemy from recommencing the attack, or giving in- formation to other cruisers. The right of capture drew after it all the other incidents. It would be most mischievous to the interests of trade, to discourage men from making a gallant de- fence, by the knowledge that in no event could they reap a re- ward for the victory. '(>) Insurance was made upon a %h\\) for a voyage from Liver- j)0()l If) the coast of Africa, and thence to the West Indies, 'with (;r without letters of mar(|ue, with leave to chase, capture and man prizes.' She captured a v(^ssel on the coast of Africa, whence she proceeded, with ln'i- pri/,(> in company, towards the W< st Iiirlies. During the voyage she several times shortened Chap. XII. Deviation and Change of the Risk, 200 sail, and lay to, in order to give the prize time to come up with her. She afterwards foundered at sea and was lost. Lord Ellcnborough said, *• The question is, whether acting as convoy to a prize, and slaclcening sail for this purpose, be within the meaning of leave to chase, capture, and man prizes,'' and he was of opinion that it was not, upon the principle that expressio unius est cxclusio alterius. Grose, J. said, ' It is the case of a ship wilfully loitering, and not using that despatch to arrive at her port of destination, that she might have done.' It was ac- cordingly considered to be a deviation. The assured contend- ed that, as the policy gave leave to take a letter of marque, it authorized the captain to act according to the authority and di- rection given in such letter, and in this case the commission au- thorized the captain, among other things, ' to bring his prizes to such port as should he convenient.'' But the judges said, ' This did not mean the actual bringing of them in by the master himself; .j. Lawrence causing them to be brought in, by putting a competent number of j,. Sydeboth- men on board for that purpose, would fully satisfy those am, 6 East, words.'(l) ^^* But under a policy giving liberty to cruise and make cap- Convoying tures, the convoying of prizes captured is not a deviation, unless piizes is not a the vessel delay or go out of the course of the voyage for that thlThip^does purpose. Under a ' liberty to cruise and capture ;' the ship not go off her convoyed two prizes off the coast of Sumatra, eight or ten days, course, or de- The jury found that the risk was not thereby increased, and lay, lor this Chief Justice Parker, in giving the opinion of the court, said, P'^''P°^^' it did not appear that the ship went out of the way, or was de- layed for this purpose. It was accordingly held not to be a deviation.(2) Wooris"' It appears from the preceding cases that a vessel insured, Mass. Rep. with leave to take a letter of marque, but without any liberty 539. to cruise and convoy prizes, can act under its commission only on the defensive ; and also that a vessel may, without any ex- press liberty for that purpose, take a commission of letter of marque, to be used in the same manner. Insurance being made on a vessel from Liverpool to Antigua, Liberty t» ' with liberty to cruise six weeks,' she cruised live weeks at one cruise six time ; then pursued her voyage a few days ; then cruised again "^^^^^^s. for five days, and was captured. Lord Mansfield thought, ' the subject matter was decisive to shovv' that the six weeks meant ,^. ^^^^ ^ one continued period of time ;' and accordingly that the cruising Bridge, Doug, at different times was a deviation.(3) 527. A ship was insured for a voyage 'from London to the South- The general ern Whale and Seal Fishery, and back, with liberty to touch, liberty to and stay, and trade at all ports; with or without letters of ^[^'^'j^^^^'^T ^ marque ; and with liberty to chase, capture, and man prizes, particular and to take, and return with, or send into port, prizes ; and clause, also to cruise thirty-one days, together or separate, on this side of Cape Horn.' The ship being off the port of St. Bias, in California, and so not within the limits of the liberty to cruise thirty-one days, waited nine days for a vessel of the enemy to come out, which came out at the end of that time, and 27 210 Deviation and Change of the Risk. Chap. XII. (l)Hibbertr. Haliday, 2 Taunt. 428. Liberty to see prizes into port does not authorize de- laying while they are re- pairing. (2) Jarratt r. Ward, 1 Camp. 263. It is not a de- viation to go out of the course on ac- count of a pe- ril insured a- gainst. (3) Vallejo f. Wheeler, Cowp. 143 ; M'lntire i\ Bowne, 1 Johns. 229. (4) O'Reilly r. Gonne, 4 Camp. 249. Whether it is a deviation to go out of the course on ac- count of a pe- ril not iM.'urcd against. was captured. While the vessel insured was so waiting, she was upon fishing ground, but not upon the best fishing ground. This was held to be a deviation. The waiting for the prize to come out, was equivalent to cruising, and the general liberty for cruising was restrained by the particular clause.(l) In a case of insurance for a similar voyage, with ' liberty to cruise for, chase, capture, man, and see into port, any ships of the enemy ;' the captain having taken a prize, went with it into St. Catharine's ; where he staid a month to repair the prize, which he sent to Europe. The prize could not have been re- fitted without this delay. Lord EUenborough instructed the jury, that ' the leave given would have authorized the ship to accompany prizes to any convenient port, consistent with the main adventure. She might have entered the port with them, and seen them safely moored, and perhaps stopped a reason- able time to give directions for their proceeding on their final destination ; but could not justify the ship in waiting till the prize was repaired. '(2) There can be no question that the liability of the underwri- ters continues, after a departure from the usual course, occa- sioned by the operation of a peril insured against, or for the purpose of avoiding a peril of this description. If barratry be a peril insured against, and the master barratrously depart from the usual course of the voyage, the insurers are still liable for any subsequent loss by capture, or other perils insured against in the policy.(3) Freight was insured against detention and capture, among other perils, ' at and from Laguira, to ports on the Spanish Maine, and to ports in the North Sea.' In order to avoid being seized by the Royalists, at Laguira, the ship was obliged to cut her cable and proceed to sea when she was not properly fitted to perform the voyage. In consequence of sailing without a suitable preparation, she could not proceed upon the voyage, and was obliged to put into Jaquemel, which was out of the course of the voyage. Chief Justice Gibbs said, ' The ship was un- questionably under the protection of the policy when she sailed, and the underwriters, who would have been liable had she been seized in port, could make no objection,' on account of her sail- ing without sufiicicnt preparation for the voyage, as this was made necessary by the danger of seizure in port. Accordingly the (juitting the course ol" the voyage to put into Jariuemel was held not to be a deviation. (4) A question has been made whether it is a deviation, if a vessel goes out of its course, or delays, on account of a peril not insu- red against in the polic3% Insurance being made on goods, from Liverpool to Savannah, the vessel arrived at Tybce Bar, off Sa- vannah, on the 2.5th of February, 1811, where the master Icarn- efl that, in conscfjuencc of an act of Congress prohibiting the importation of goods from (Jreat Britain, the vessel and cargo would be forfeited if he entered the port of Savannah. He accordingly proceeded to Amelia Island, where the vessel re- mained until she could safely enter (he harbour of Savannah. Chap. XII. Deviation and Change of the Risk. 21 1 It was insisted in behalf of the underwriters, that, as they would not have been answerable if the vessel and cargo had been seized and condemned for violating the non-intercourse law by entering the port of Savannah, this was a departure from the course of the voyage to avoid a peril not insured against, and which could not be insured against legally ; and therefore that it was a deviation ; and of this opinion were the court.(l) (i) Breed r. A vessel insured for a voyage ^ from New York to Port au Eaton, lO Prince, French risks excepted,' was captured by a French pri- 21^^*' ^^ vateer, and recaptured by an English frigate, and afterwards condemned at Jamaica as French property. Mr. Justice Rad- cliff, giving the opinion of the court on the question, whether the risk was determined by the French capture, said, ' The voyage was thereby materially interrupted, and the subject placed in a new situation. It cannot be said that the perils were not increas- ed, nor that the subsequent capture was not a consequence of, or probably occasioned by, the first. It is not material that it should ajjpear to be so. Jt is sufficient that the voyage was in- terrupted and the vessel stopped, for at least four days, by an event, the risk of which was undertaken by the assured. This detention, like a deviation, altered the risk, and must be consi- dered as discharging the policy.'(2) (7) ^oget ». Insurance was made upon goods on board of the Catharina, johns^. Cas. ' at and from Laguira to the ship's port of discharge without 248. the Baltic, north of Gothenburg, free of capture and seizure, and the consequences thereof, in the port of Laguira.' When the vessel was about half loaded at Laguira, then in possession of the Patriots, the Royalists advanced upon the place. To avoid seizure and capture, the Catharina was obliged to depart immediately from the port, and the master was compelled by the magistrates to take on board a number of Patriots, who would have been in danger of being massacred, if they had re- mained on shore. With these persons on board the vessel sail- ed for St. Thomas's; but being light, she fell to the leeward, and made the island of Casa del Muerte, to the southward of Porto Rico, from whence she was unable to beat up to St. Thomas's, which she might have done had she not been so light. And partly to repair the rudder, and partly for the purpose of com- pleting his cargo, the master proceeded to Jaquemel, in St. Do- mingo, which, though considerably out of the direct course to England, was the most convenient port for making the repairs and completing the cargo. He could not touch at any of the Spanish islands on account of having the Patriots on board. The vessel was wrecked at Jaquemel. Chief Justice Gibbs told the jury that the assured was not entitled to recover. To avoid capture and seizure in port, ' for which the underwriters would not have been liable, the ship cut her cable and proceeded to sea in a state in which she was not properly fit to perform the voyage home. After that, she goes out of the course to unload her outward and complete her homeward cargo, without any (31 o'Rileyf. liberty for that purpose, which she could not not do at the risk Roy. ^ss. Co. of the underwriters.'(3) 4 Camp. 246. 212 Deviation and Change of the Risk. Chap. XII. But where the master of a vessel bound to Holland, being in- formed in the course of the voyage that the port of destination was blockaded, on this account, quitted his course, and put into Plymouth, in England, where he concluded to give over the voyage, and accordingly proceeded from that port to London, and discharged his cargo there ; the opinion of the court was, that the ' deviation must be considered as commencing on the (i)Leer. vessel's sailing from Plymouth.^ 1 ) It was the opinion of the Gray, 7 Same court, that when a voyage was abandoned under these Mass. Rep. circumstances, ' the loss did not arise from any of the perils in- px Richard- sured against ;' in the common form of the policy.(2) From son V. Maine thcse two cases it is to be inferred, that the going oft' the course Ins. Co. 6 from a 'just fear"" of a peril not insured against, is not necessa- Mass. Rep. ^.-^^^ ^ deviation. Goods were insured on a voyage from Liverpool to Amster- dam, ' against sea-risks and fire only.' The vessel was arrested on the voyage, by a commander of a public ship, and carried into Falmouth, and detained for more than a month. After be- ing released, she proceeded on the voyage. It appeared that after the time when the vessel was so detained, the goods had sustained sea-damage. The loss by sea-damage being claimed, it was objected that the vessel's being thus taken out of the course of the voyage, w^as a deviation ; and asserted that ' no case could be cited to show that a deviation is excused, which was to avoid a peril to which the underwriters Avould not have been liable, had it happened.' The opinion of the court was given by Sir James Mansfield, who said, ' At first it struck me that there was 'something like a difference between a limited and a general policy, yet on further consideration, 1 do not think that there is any diff"erence. I do not find any distinction be- tween the present insurance, and the ordinary insurance, includ- (3) Scott r. ing all the risks which are insured in policies in general. '(3) It Thompson, 1 ^y^^g therefore the opinion of this court, that the being taken out N. R. 181. c , 1 ' -1 * • 1 • . ■ . 1 ■ *• 01 the course by a peril not insured against, is not a deviation. In a case of insurance from Exeter to London ' against cap- ture only,' the vessel Avas blown to the coast of France and there captured, where but for the peril of capture, she would have been in perfect safety. Lord Kenyon told the jury that ' the case was too clear to admit of argument, this was clearly (4) Green r. a loss by capture. '(4) '••ims''<^, In this case the vessel was brought, by a peril not insured I'f-ake, 212. against, to be imminently exposed to one that was insured against ; but still it might be said that there was nothing extra- ordinary in the peril not covered, and so it was no more than must have been contem})l;Ued by the ])artics. Lord Ellen- borough, speaking of a case of insurance against only a jmrt of the usunl perils, says, ' If a shij) meet Avith sea-damage, which rjiccks her rate of sailing, so that she is taken by an enemy from whom she would otherwise have escaped, the loss is to be ascriiicd to the cupiiire. The case of Greene v. V^lmslic, pro- fs) 15T:n«t, rreds upon a siniihr principle. '(5) And so in general, a loss is B53. considered as arising from that peril l)y which it is immediately Chap. XII. Deviation and Change of the Risk. 213 and directly occasioned, although some other peril may have re- motely and indirectly contributed to it. Insurance was made upon the schooner Sukey and Polly, ' from New Orleans to Cape Nichola Mole, and thence to St. Thomas's, against sea-risks only.'' The schooner having come in sight of Hispaniola, on her voyage to Cajie Nichola Mole, in that island, was ordered away from the island by a British ship of war, the commander of which told the master of the schooner that all the French ports of Hispaniola were blockaded ; and he endorsed the notice on the schooner's register. Being thus turned away from Cape Nichola Mole, the schooner proceeded for St. Thomas's, the next port of destination; but before arriv- ing there, sustained sea-damage, and was compelled to put into Kingston, in Jamaica, where she was condemned as not worth repairing. Chief Justice Kent said, ' A deviation from necessity will excuse the assured, in case of an insurance against any par- ticular risk, as well as in the case of a general insurance. There is not probably any exception to be met with, to the application of the general principle, that if the vessel departs from the usual course of the voyage from necessity, and departs no further than that necessity requires, the voj^age will still be protected by the policy.' And he accordingly thought this not a case of deviation. Judges Tompkins, Spencer, and Thompson, concur- red in this opinion. But Judge Livingston was of a different opinion. He said he should assume as a fact, that the schooner might have reached Cape Nichola Mole, had she not been turned away; 'and as a principle of law that every departure from the course of a voyage, unless occasioned by a peril insured against, or an apprehension of such peril, is a deviation. In ordinary insurances, because comprehending every peril, all ac- cidents which produce deviations, must necessarily be embraced by them. On such policies, if a vessel be forced out of its way by enemies, pirates, a storm, or the crew ; or go into port to re- pair damages occasioned by lightning or fire ; it is no deviation, because the assurers must have borne the loss if she had been captured, carried aw:ay by the mariners, or perished in a tem- pest, or by fire, or lightning. It would seem, indeed, that the only reason why leaving the course of the voyage can be excused, is, its proceeding from the hazard insured against, or from a rea- sonable apprehension of such peril. Otherwise, within how- ever narrow limits his responsibility may be confined, an in- surer will still be answerable, consequently at least, for every loss, without any regard to its cause. Is it not rather the ex- press contract, as well as fair understanding, in all restricted policies of this nature, that for injuries proceeding directly or indirectly from the enumerated risks alone, and no other, shall an indemnity be asked ? If not, great injustice must frequently arise, or nearly the same premium v.'ill be required for a single, as for all risks. When dangers of the sea are alone insured against, the principal matter taken into the estimate in settling the rate of premium, is the ordinary length of the proposed voyage ; but a risk, which it was fairly imagined would terminate 214 Deviation and Change of the Risk. Chap. Xll. (1) Robinson r. Mar. Ins. Co. 2 Johns. 89, in less than a month, may be protracted for years, by repealed captures and other incidents not insured against. In an insu- rance against capture alone, the risk must always depend more or less on the state of the winds and weather. Two vessels, in performing the same voyage, and at the same time, may have difterent weather and different passages. One may arrive in a month, and the other not in double that time, and yet a capture of the last, although delayed by bad winds and storms, would be a loss within the policy, as well as the first. Suppose a ves- sel to be insured against capture only, from Albany to New York, who can doubt, if she grounded on one of the bars in Hudson's river, and were taken while there waiting for the tide, that the insurer would be responsible T{\) It appears from some of the preceding cases, that a ship in- sured to different ports successively, may pass by any of them without touching, }n*ovided she touches at the others in their proper order. Without denying this principle, it is difficult to make any question in respect to deviation, in the last case, on account (5f the schooner's not stopping at Cape Nichola Mole, unless the distinction be assumed, that although the captain might have voluntarily omitted that port, and the risk would still have continued, yet it was a deviation to omit it from constraint, or the fear of a peril not insured against. This would be a very strict construction. It is not like the case of the master's being (2) Supr. 185. limited to one out of three different courses of the same voyage,(2) instead of being left to choose his course according to his own discretion at the dividing point; for the exercise of discretion on the part of the captain, in choosing his course, is supposed to have relation to the degree of sea-risk, whereas the right of the assured to omit a port, has no relation to the sea-risk. The captain is supposed to choose one out of three courses, because he thinks it the most safe or expeditious, but the assui'ed is sup- posed to choose to omit, or touch at a port, from a consideration of the state of the markets. It is difficult to devise any principle to which these cases re- specting a departure from the course of the voyage, on account of a peril not insured against, may be referred, and by ivhich they may be reconciled and shown to be consistent with each other. Nothing is said in them respecting any fault on the part of the assured, but the c|uestion is precisely the same as if two policies were made upon the same voyage, one against sea-risks, and the other against capture. If in such a case the assured could not stop to repair sea-damage, without forfeiting the insurance against ca[)ture, and vice versa^ could not change his course to avoid capture without forfeiting all claim of indemnity for subsequent sea-damage, the two policies would afford him but an imperfect indrnniity, thougli they might both em])race all the perils insured against in a policy of the common form. When an underwriter insures against cajiturc onlif, he rnnnot but know that the ]iro- pcrty is to be exposed to sea-risks, and it seems not to be a more liberal construction of this contract, than is adopted in many other instances, to hold that the right of indemnity does Chap. XII. Deviation and Change of the Risk. 215 not cease, unless the risk of capture be unnecessarily enhanced or altered, or the voyage be broken up. This seems to be the only construction of the contract by which the intention of the parties in making it, can be effected. Whatever the assured may intend, yet if he actually does Aninteniion nothing to increase or change the risks insured against, the un- |° f'eviate, derwriter remains liable. An intention to deviate is not a devia- chaLTtheTn- tion.(l) surers. In case of insurance for a voyage from Carolina to Lisbon, (i) Hoggf, and thence to Bristol, it appeared that the master had taken in llorner, Park, salt, which he was to deliver at Falmouth before going to Bris- r.- 1 ^IST* tol, but the ship was taken while on the course to both places, lar, 445; and before changing the course to put into Falmouth. Chief Bynk. Quaes. Justice Lee held that this, being merely an intention to deviate^ ■'"Jl" 1*"^. 1.4. did not discharge the underwritcrs.(2) (2) Foster r. It appeared that the master of a vessel insured for a voyage Wiimer, 2 from Guadaloupe to Havre, had been ordered to keep in the '^*'". 1249. course to Brest, for safety ; from which it was urged, in be- [, p^r'^ug"^^°° half of the underwriters, that the real destination was to Brest, Doug. 3G1. ' and that there had been a deviation ; in regard to which Lord (4) Kewley v. Mansfield said, ' The voyage to Brest was, at most, but an in- ^7^J!]^ ^' tended deviation, not carried into effect. '(S) r^\ g^p^t r. Goods being insured from Grenada to Liverpool, the master Vaughan, sailed with instructions, and an intention to touch at Cork, but Marsh. Ins. the vessel was lost before comine; to the dividing; point. The /^-fv- * court said, 'Where the termini oi the voyage were really the j,. phelps same as those described in the policy, it was to be considered cited 7 T. R. the same voyage, and a design to deviate would not vitiate.'(4) Jf l- ^^^ ^^^° But in a policy on the ship for the same voyage, Lord Kenj^on ^n^utt i M. nonsuited the assured, upon the ground that the voyage upon & S. 40; and which the ship sailed, was not the voyage described in the Wooidridge v. policy.(5) ?°y^^"' Tjtri I • 1 c ^ 1 T 1 1 IJoug. 16. Where the voyage insured was n'om Cork to London, the (7) i Johns, master intended to touch at Weymouth, but before he turned off Cas. 184 ; 2 for that purpose, he v/as overtaken by a storm and driven into Games' Cas. that very port. Lord Kenyon held this not to be a deviation.(6) (j^ines 274 • The same rule as to an intended deviation is universally iiJohns. 261; adopted by the courts of the United States.(7) '7 Mass. Rep. As a deviation is the unnecesary varying of the risks assumed (^^^jj^j^ 304 by the underwriters, it cannot take place until after the risk has x, . ' , * 'J ' i . , , . it IS not a de- commenced; there must have been some time when the insurers viation to sail woidd have been liable for a loss, or there can be no deviation, uponadiffe- This makes it of importance to distinguish between the com- """^^ voyage, mencement of the risks insured against, and the undertaking of a different adventure ; a distinction of some difficulty in many cases, since the courts have put it in some degree upon the intentions, as well as the acts of the assured. It was said by Lord Mansfield, that, ' in all cases of a devia- tion, merely intended, but never carried into effect, the terminus a quo and ad quern, were the same.'(8) Accordingly it has been /,j-v Do„»_ jg^ held in a number of cases that if the voyage intended, is not to the port of destination named in the policy, it is a different voyage 216 Deviation and Change of the Risk. Chap. XII. from that insured ; and the voyage insured does not in such case commence. A vessel insured for a risk, ' at and from Maryland to Cadiz,' cleared out for Falmouth, in England, and gave bonds to land the cargo in Great Britain, and sailed Avith the intention to make Falmouth the port of destination, but was captured on the common course to both Falmouth and Cadiz. It Avas held that this was not a case of intended deviation merely, since, as Mr. Justice Buller said, ' there could not be a deviation from what never existed ;' but that the voyage upon which the vessel (1) Woold- sailed, was different from the voyage insured.(l) d ^f^D ^cr^is ^^ ^^^^ ^^ insurance on a ship from Newfoundland to England ; ' °' ' the vessel stopped to fish on the Banks, and Avas afterwards lost on the A^oyage to England. Buller, J. said, ' The voyage insured was from a port in NeAvfoundland to England, Avhereas this ves- (2) Way». sel sailed to the Banks, Avhich Avas a different voyage. '(2) T^R^-io"'' "" Lord Mansfield says, ' deviations arise from after-thoughts, (3) Dou''. 17. after-interest, after-temptation ;'(3) and he seems to think that a deviation is distinguished by this circumstance from the sailing on a different voyage. The other circumstance by Avhich a deviation from the voyage insured, and a sailing on a different voyage, Avcre distinguished by the same judge, is, that in a case of deviation, ' the terminus a quo and ad quern, are the same,' (4) Doug. 18. Avhich are named in the policy. (4) But it is diificult to reduce the different decisions Avithin these principles. In a case above cited, in which, under a policy on a voyage from Guadaloupe to Ha\Te, the insurers insisted that the ship had sailed on a voyage to Brest, and accordingly had not sailed on the A'oyage insured, although at the time of the capture she Avas on the common course to both Havre and Brest ; Lord Mansfield said, ' The sailing on the voyage to Brest, Avas, at most, but an intended devia- (5)Thellusson tion.\5) This seems to be assuming that the vessel may sail for '^ ^<^''?u"°"» a port different from the port to which she is insured, and yet °"^" * be considered as sailing the voyage insured, while she is on the common course to both ports. In case of the captain's being limited, at the commence- ment of the voyage, to one out of three diilerent courses, instead of being left to use his own discretion in choosing his course, Avhen he came to the dividing point ; Mr. Justice Lawrence said, ' If the ship had been captured before she took the northern course, I should have thought that the assured would have been (6) Middle- entitled to a vcrdict.'(G) wood V. In tAvo other cases decided in the time of Chief Justice Lee,(7) R^K4 ^'^*^ insurers were held to be liable for a loss happening while (7) Foster ?•. the ship Avas on the course to the port to Avhich she Avas in- "VViinier, 'iStr. surcd, although the captain had at the time of sailing intended l**^' ^^'■**-'' to deviate from the voyage. It seems therefore to be pretty A»!i. Co. 2'sir. ^^c'' settled, that the time of forming a design to deviate, Avhether 1249. it is before or after the commencement of the voyage, is of no importance. At whatever time the intention may have been foi-mcd, as long as the assured has done no act, in pursuance of such intention, by which the risks insured against ai"e increas- ed or varied, the insurei's continue to be liable. Chap. XU. Deviation and Change of the Risk. 217 This question has come under consideration in subsequent cases. Goods being insured from Heligoland to Memcl, the as- sured instructed the captain to go to Gothenburg, and there as- certain whether he should proceed to Anholt or Merael. The ship proceeded on the voyage, and being on the course to Goth- enburg, and within five miles of that place, was driven by a gale of wind under the batteries of Skegan, where she was captured. The ship had not actually departed from the course to Memel, previously to her being captured. Lord Ellenborough said, ' 1 think there was an inception of the voyage insured. The way in which it strikes my mind, is, that the preponderating purpose of the assured was to go to Memel, although that intent was liable to be changed according to circumstances. But I am not aware that it is laid down in any book, if the terminus be once fixed, that because it is made subject to alteration dependent upon cir- cumstances, it shall on that account be less a voyage to that place to which the party originally contemplated to go. I think ,j. ^^ ^^^ there may be a good inception of the voyage under a fluctuating ,,. Aiinutt,"" purpose.'(l) , M. &S.46. In a case decided in New York, insurance was made on a voyage from Wilmington, in North Carolina, to Falmouth, in England, but the vessel cleared out for New York, for the pur- pose it seems of obtaining seamen, and with the intention, on the part of the captain, of then proceeding to Falmouth, to which port the goods were consigned. She was lost before turning off for New York, and while on the" course to either that place or Falmouth. One question in the case, was, whether this was only an intended deviation from the voyage insured, or a differ- ent voyage. Radcliff, J. said, ' If the course from Wilmington to New York had varied from the very port or wharf from which the vessel sailed, could she with any propriety be said to have commenced her voyage to Falmouth, or to have deviated from it ? There could, then, clearly have been no inception of the voyage to Falmouth, and of course no deviation. If so, can the accidental circumstance of the iter, being the same for a short distance, alter this case in principle, or essentially change the character of the voyage ; I think not. It was still a sepa- rate and equally distinct voyage.' He accordingly appears, to have been of opinion, that the original intention of devia- ting makes the voyage upon which the vessel sails, diftcrent from the one insured ; or, in other w^ords, the voyage insured never commences if there be an original intention of varying the risks insured against. But Mr. Justice Kent was of a difterent opi- nion. ' The courts,' said he, ' have gone a considerable length to- wards giving us a precise and definite criterion, by which we can identify a voyage. Where the terminus a <^?fo, or commence- ment of the intended voyage, and the terminus ad quern or conclu- sion of it, are the same with the termini of the voyage described in the policy, the voyage intended, and the voyage insured, are the same, notwithstanding any proposed deviation, or touching at any intermediate port out of the usual and direct course of the voyage. In the present case had an actual deviation, without 28 218 Deviation and Change of the Risk. Chap. XII. (1) Silvar. Low, 1 Johns. Cas. 184. (2) Steinback r. Col. Ins. Co. 2 Caines 129. (3) Smith [Pres. of the Col. Ins. Co.] V. Steinback, SCainea' Cas. 172. (i) Forbes r. Church, 3 Johns. Cas. 159. necessity, taken place, the defendant would have been discharged. No such actual deviation is pretended.' Mr. Justice Lewis thought that, ' to fix a criterion that shall determine ia all cases, between a contemplated deviation and a distinct voyage, is diffi- cult, if not impossible.' But both he and Chief Justice Lansing were of opinion that this was not a case of a distinct voyage.(l) Under a policy on a ship from Barcelona to Baltimore, a loss happened in the port of Barcelona. One of the objections to the claim for the loss was, that the vessel, as the underwriters alleged, was destined to sail for Havana, and not for Baltimore ; and so a distinct voyage was undertaken. In regard to this ob- jection, Mr. Justice Livingston said, in giving the opinion of the court, ' The insurance being at and from Barcelona, it may admit of doubt, whether, as the loss happened theix, the defendants would not be liable, though a voyage to Havana were in con- templation.'(2) And Chancellor Lansing, giving the opinion of the court of errors, in the same case, said, ' Whatever change in the destina- tion of the vessel might have been contemplated, the risk having cofnmenced, the insurer was entitled to his premium ;' which seems very strongly to favour the opinion that the original pur- pose of sailing for a different port does not make a distinct voyage.(3) Another case decided in the same state, on a demurrer to the plaintiff's evidence, seems to favour the opinion that sailing on the course to the port to which the vessel is insured, but with a real destination to a different port, is a sailing on a different voyage. The insurance was from New York to St. Andero, in Spain. The vessel having made Cape Ortegal, was proceeding to the port of St. Andero, when she was captured. But according to the testimony, she sailed for Hamburgh, and was on her voyage thither when she made Cape Ortegal, and she then proceed- ed towards St. Andero, with the intention of staying there until the season should be more favourable for proceeding to Hamburgh. It is not stated that the vessel had been actually on the course to St. Andero, during the whole voyage, until the time Avhen she was captured. The court said, ' There is not a particle of evidence to prove that the voyage was ever under- taken for St. Andero, but the contrary is jiroved. There appear- ed, therefore, nothing from which any legal inference could be made by the jury, that the vessel sailed on the voyage insured.' By the general tenor of the opinion of the court, as delivered by Mr. Justice Radclill", it seems to be im])iied, that if the ship actnalhj sail on the course of the voytige insured, but with the intention of making a dillcrent jiort from that to which she is in- sured, it is a distinct voyage, and the voyage in the policy does not commence. (4) Under a policy for a voyage 'at and from Newry, in Ireland, to New York,' the vessel cleared out for New York, but took passengers wl)f)in the master, with the concurrence of the agents of the assured, ngrced in writing to l;nid at Halifax, in Nova Scotia. While the vessel was jirocccdin^ down the Irish Chap. XII. Deviation and Change of the Risk. 219 Channel, and before turning off for Halifax, she struck on a rock ; and a claim was made for the loss occasioned by this accident. Chief Justice Kent gave the opinion of the court, ' that the previous intention to touch at Halifax, did not make it a different voyage ; as the termini, as well as the substantial ob- ject of the voyage described in the policy, and of the voyage upon which the vessel sailed, were the same.' Livingston, J. said, ' Both in England and this country, it is well settled, that an intention, however strong or well ascertained, to touch at an intermediate port, not mentioned in the policy, does not consti- tute a different voyage, but only an intention to deviate. Were this res integra, doubts might reasonably be entertained ; but it is (1) Henshaw no reason for shaking the authority of several adjudged cases, ^ ^n^r'"^ 3 merely because a better rule might possibly have been adopt- 074 ' ed.Xl) A policy was made on goods from New York to Gothenburg, and at and from thence to one port in the Baltic. On arriving at Gothenburg the master determined to go to St. Petersburg, which election Avas considered as limiting the voyage insured to that port of destination, and as taking away any further exer- cise of discretion in this respect. The vessel sailed for St. Petersburg, but on account of sea-damage was compelled to put into Carlsham, in Sweden, to repair, where she was detained until it was too late in the season to proceed to St. Petersburg, and she accordingly remained there till the next spring, when she sailed for Stockholm instead of St. Petersburg, and the day after sailing, being on the course for either Stockholm or St. Petersburg, was captured by a French privateer, and was afterwards condemned as prize. Chief Justice Thompson, in giving the opinion of the court, said, ' Had the policy in this case been originally filled up with St. Petersburg, as the port of delivery, or had that port been elected as the terminus ad quern, before the vessel left New York ; and' afterwards, but previous to her sailing, the assured had changed the voyage to Stock- holm, this would have been substituting a new voyage ; the risk would never have commenced, and there must have been a re- turn of premium.' The opinion of the court accordingly was, that there had been neither a substitution of a different voyage, nor a deviation, and that the assured was entitled to recover the loss. But Mr. Justice Van Ness dissented. He said, ' In every case, (and I affirm it without exception) where an unexecuted intention to depart from the usual route of the voyage, has been held not to vitiate the policy, it will be found that the terminus ad quern, mentioned in the policy, was not abandoned, but that the vessel intended ultimatelj^ to proceed to it. In case a de- termination is formed to deviate, no matter whether before or after the voyage is commenced, provided the voyage insured is intended to be performed, the ship may be said to be upon the voyage, though not in the customary route ; but with what pro- priety or reason can it be said, if the terminus ad quern is com- pletely abandoned, a different port of destination adopted, and 220 Deviation and Change of the Risk. Chap. XII. (1) Lawrence the ves3el proceeds in pursuance of such change of design, that r. Ocean Ins. she is pursuing the voyage insured ?'(1) Co. 11 Johns. fpi-^g judgment given in this case was affirmed in the court of errors, fourteen of the judges heing in favour of affirming, and eight in favour of reversing it. Chancellor Kent was of the latter number, and gave an elaborate opinion. He said, ' A voyage imports a definite commencement and end. It is known and characterized by its termini. They are the recognised tests of its identity. It is equally clear that deviation is applicable only while the same voyage continues. Deviation is not a change of the voyage, but of the proper and usual course in performing it. The voyage insured is never lost sight of in cases of deviation, actual or intended. A voyage is always deemed the same, whatever be the deviation, provided the origi- nal port of destination be not abandoned. And because the question of deviation always presupposes and admits a continua- tion of the original voyage, it follows that a mere intention to deviate, whether formed before or after the commencement of the voyage is no deviation, if the intention was never carried into efiect. But if the original place of destination be abandon- ed, in order to go to another port of discharge, the voyage itself becomes changed, because one of the termini of the original voyage is changed. The identity of the voyage is gone, and a new distinct voyage is substituted. In that case intention is everything, because on that depends the fact, whether the origi- nal voyage was, or was not, abandoned. And if the intention to abandon be once clearly and certainly established, it then becomes perfectly immaterial whether the vessel was lost be- fore or after she came to the dividing point, because, in either case, she was lost, not on the voyage insured, but on a difierent voyage. ' A distinction has, however, been set up between the inten- tion formed before or after the voyage commenced, to change the voyage, by dropping the port of destination and selecting another. It is admitted by those who make this distinction, that the intention to change the voyage, and sailing under that inten- tion, discharges the insurer if formed before the commencement of the voyage ; but if formed after the voyage is commenced, it is then likened to an intention to deviate in the same voyage, and does no harm, if the loss happens while the vessel is still on the common track. 1 am persuaded that there is no foundation (2) New York f^j. jjjjg Jistinclion. In one case the vessel is in fact sailing on r"^^'" Law- ^^^ same voyage, in the other on a dillerent voyage. The new rente 14 voyagc was in tlic act of performance, as much before, as it could Johns. 4C. havn been after passing the dividing point.'(2) This question has been considered also by the Supreme Court of the United States, in an action upon a policy on a ves- sel 'at and from Kingston, in .Jamaica, to Alexandria, in Vir- ginia.' Tlio vessel took freight for Baltimore, as well as Alex- andria, iiit(Mi(iiiig to touch at. Bidtiinore first; and wns captui^ed while on the, common track to both those places. Mr. . Justice Johnson said, ' The ordinary rule for ascertaining the identity Chap. XII. Deviation and Change of the Risk. 221 of a voyage is by adverting to the termini. If this rule has any defect, it is not extending far enough the claim to indemnity, as the terminus ad quern may in many instances be relinquish- ed, without any possible increase of risk, and without varying the risk. I will instance the case of an insurance from America to St. Petersburg, when the vessel is, in fact, to terminate her voyage at Copenhagen.' And as the final port of destination, or terminus ad qncm, was not changed in the case under consi- deration, it was held by the court that the vessel had sailed on ^^ ^TuJk-' the voyage insured, and that there had been no deviation before er,*3Cranch, the loss took place.(l) 357. The doubts and perplexity in which the preceding opinions are involved, as well as their discrepancy, afford pretty strong presumption of some defect in the principles assumed. The voyage is said to be the same, while the extreme points remain the same, but no reason is any where given to show that the identity of a voyage depends upon these points, any more than upon others. The terminus a quo, and the terminus ad quern, are said to characterize a voyage, but they do not seem to charac- terize it otherwise than by giving it a name or description. If two ships sail from Boston to Liverpool, the one by the way of Halifax, the other by the way of Havana, though the ports of departure and final destination are the same, and the names of both are used in giving a description of the voyage on which either ship sails, yet it is quite evident, that, as to all the pur- poses of insurance, these voyages are as different from each other, as if one of them terminated at Havre de Grace instead of Liverpool. Though the ports of departure and final desti- nation are used in describing the voyage, it does not appear in what respect the identity of the voyage, to any material pur- pose, depends upon these any more than it does upon any inter- mediate port or part of the course. Judges have, in one or two instances, regretted that courts had gone so far in applying the principle, that an intention to deviate is not a deviation, but the reasons of this regret do not appear. Take the instance, put by Mr. Justice Johnson, of an insurance on a voyage from New York to St. Petersburg, and suppose that the assured concludes, after effecting the policy, to terminate the risk at Copenhagen, and thus to exonerate the insurers from a part of the stipulated indemnity, Avhile he pays the entire premium. It does not appear what objection there possibly can be, to enforcing the contract, and giving the as- sured the advantage of it to this extent, and as far as he brings himself within its conditions. The reason is, at least, equally strong in favour of considering the policy to be applicable to a voyage, as far as the vessel actually proceeds upon it, although the captain, Avithout the knowledge of the assured, sails with the intention of finally making a different port of destination. Where the property is for a certain lime within the conditions of the risk, courts would no doubt hesitate to decide that the assured can entitle himself to a return of premium, by showing that he himself, or the master of the vessel, had an intention. 222 Deviation mid Change of the Risk. Chap. XII. whether before or after the risk was to attach, that the ship should deviate, or finally proceed to a different port of destina- tion. On the contrary, the cases relating to the commencement of the risk, and the decisions respecting the right to a return of premium, are pretty direct and strong in support of the opposite (1) 3 Cranch, doctrine. If then, as Mr. Justice Johnson suggests,(l) any prin- ciple assumed ought to operate reciprocally, and equally, in re- spect to both parties, which proposition is too plain to be doubt- ed of, it seems to be a just, if not necessary inference, that the assured is entitled to recover for any loss happening before such intention is manifested by some act, whereby the risks in- sured against are affected and changed. The assured, in claim- ing a return of premium, cannot, to entitle himself to such re- turn, take advantage of any alleged intention which was not so manifested by acts, either before the commencement of the risk, or at the agreed time of its commencing, that he would be bound by the intention, and the insurers could fix it upon him ; and therefore, since the rule ought to operate equally, the insu- rers ought not to be able to take advantage of the intentions of the assured to avoid paying a loss, of which the assured could not have taken advantage in claiming a return of premium. If, in any case whatever, the intentions of the assured are to be held not to affect the rights of the parties until some act is done by which the risks insured against are altered, there seems to be very strong reason in favour of following the principle out in all its direct consequences, and holding that in all cases where the risk has commenced, it continues until the risks assured by the underwriters are actually altered, that is, until a deviation actually takes place. But in regard to the commencement of the risk, it might be necessary to consider the intention of the assured, and his agents, in order to put a construction upon acts which might be considered as done in prosecution of the voyage insured, or of another voyage. If the owner of a ship effects insurance upon her for a voyage at and from New York to London, before the ship has arrived at New York, or before any preparation is made for the voyage ; and before the arrival of the ship, or any act done in preparation for the voyage, so as to give a com- mencement to the risk, the assured changes his plan and deter- mines to send his vessel to Lisbon, and before the risk would begin in the ordinary course under such a policy, does acts which unequivocally prove the change of plan, and afterwards actually despatches the ship on a voyage to Lisbon, it would seem reasonable enough that the insurers should not be liable for any loss that might take place in the port of New York, or (jn the common course from New York to both London and Lis- bon, and also that the assured should be entitled to a return of premium. The question, in such case, is, whether the risk has commenced. But since, where the property is apparently within the conditions of the contract, courts would re(|uire very distinct and une(|uivocid proof of pur))oses and acts of the as- sured, to show that he is entitled to a icturn of premium on the Chap. XII. Deviation and Change of the Risk. 223 ground that the property has not really been within those con- (]) Henkle r. ditions, it seems but just to interpret his acts and purposes by Roy. Ex. In». the same principles, where they are to operate against his claim ^°- } Y^^' for a loss. In determining whether the risk on a voyage, com- -waii'r. mencing at a particular place, has begun, the fact of the ship's Church, i being at that port, and the acts of the assured at such port re- ^^j°^^' ^17; lating to the voyage, and the intentions of the assured in refer- i^^^l^o.^ ^^' ence to which such acts are to be interpreted, are certainly of Johns. 130. great importance. His intention in regard to the final port of (2) Phyn v. destination is no doubt entitled to consideration, but his inten- /^"^'^^'if^'* tion in other respects may be equally important in giving a con- 595 ; Brazier struction to his acts, and there appears to be no reason for in- v. Clap, 5 quiring into his intentions, except for the purpose of determining Mass. Rep. 1. what construction to put upon his acts, which require to be ex- plained. The mere circumstance of clearing out for a port different The effect of from that to which the vessel is insured, is not of itself a proof taking a false that a distinct voyage is undertaken, nor is it necessarily such a change of the risk as is equivalent to a deviation.(l) In order to render such a clearance a deviation, or to give it the same effect, it must appear that the risk is thereby increas- ed or changed in the particular case. The circumstance that a deviation takes place through the Deviation by mistake or nedi^ence of the captain, does not prevent its dis- ^^^ mistake , • .11 % • 1 • • . 1 ] 1- or negligence cnargmg the underwriters, since his mistakes and negligence of the captain, are at the risk of the assured.(2) A bottomry bond made in the common form is forfeited by a ^ bottomry ,!„•.• / \ bond is for- deviation.(a) t-i^Au.^A T t ^ ' r • ri-ii- • . c felted by a de- In the case 01 an insurance 01 a building against lire, an un- yiation. necessary and voluntary change and enhancement of the risk will discharge the insurers from all subsequent liability under risk umier a ^ the policy. If a building, that is insured against fire, is so al- policy against tered by the assured as to render the risk greater, the insurers ^r^i discharg- will not be liable for any loss that may happen after the altera- ^g^^^^ '"*"' tion is made.(6) The insurers may waive taking any advantage of a deviation ; I" "«'hat man- which must be done in writing to make it binding, at least if it |^^^ of the /"- be after the deviation, and after the policy is subscribe d.(3) It surance in- seems to be implied by Lord Kenyon,that if the intention to de- curred by a viate be ' communicated' to the underwriters before subscribing deviation may the policy, this will justify it. He implies this in his opinion in . the case of the captain's being limited to one course out of three (3-) Crowninc- different courses of the same voyage; in regard to which, he shield r. New said, ' That was a most important fact, and ought to have been York Ins. Co. communicated to the underwriters.'(4) But this may be only an ^^^g^"^^' ^^^' inaccurate expression of his opinion, that the fact ought to have (4)'Middle- been inserted in the policy, since the mode of communicating wood v. this fact to the underwriters was not the particular subject of 5^^!^^^' ^ '^' consideration in the case. (a) Harman v. Vanhatton, 2 Vern. 717; Western r. Wikly, Skin. 152 ; Williams v. Stedman, Skin. 345; Holt's Rep. 126. (6)" Stetson V. Mass. Mut. F. Ins. Co. 4 Mass. Rep. 330. 224 Risks Covered. Chap. XIII. CHAPTER XIII. RISKS COVERED. Sec ti 071 1. ^/^cts of ^/Jgenis. In policies upon lives, and against fire, the peril insured against is of so definite a nature, that no doubt can arise in re- gard to (he description of risk assumed by the insurer. The risks most usually insured against in marine policies are perils of the seas, fire, piracy and theft, barratry, capture, ar- rests and detentions, and all other perils. This general clause, by which the insurers undertake to make indemnity for all da- mage and loss that may happen to the property from any peril whatever, is very much narrowed by the construction which courts have given it. The liability of the insurers is subject to one limitation in re- gard to all the perils assumed by them in the policy. Although a loss may be immediately and directly occasioned by a peril insured against, yet if the operation of that peril in causing the loss is occasioned by conduct of the assured or his agents, which is not insured against, the insurers are not liable for the loss. Thus if the insurer assumes the risks of the seas and fire, but not that of the negligence and misconduct of the agents U Avhom the assured entrusts the property, and the property is burnt or sunk by the negligence or misconduct of such agents, the insurers are not answerable for the loss. So if the insurer assumes the risk of the negligence and misconduct of agents, employed by the assured, but not of the assured himself, and the misconduct of an agent is owing to the fault of the assured, the underwriter is not responsible for the consequent loss. Whether an insurer can legally bind himself to indemnify a person for his own negligence and misconduct has already been considered. AVhatever oj)inion may be entertained on this sub- ject, it is certain that no vniderwriter has ever been held, under any contract of insurance, in whatever form, to be answerable for losses directly and evidently occasioned l)y the fault of the assured himself. Tlie conduct But the underwriter may undoubtedly make himself liable (o nf aqtnts may indemnify thc assured against the fraud and negligence of his be uisurt agents, nnd the only (|ucstion in this respect, is, whether thc contract is so framed as to imj)ose u|)on him this responsibility. liy the common form of the policy, tlie master of the vessel and the mariners, are the only agents against whose misconduct the assured is protected, and the only acts of thc master and ma- riners usually insured against, are those which amount to barra- try. In some places the common form of the policy makes a distinction in regard to this risk, l^elwcen an insurance ujion the Sect. 1. Jlcts of j^gents. 225 ship or freight, and one upon the cargo or profits, barratry be- ing insured against in the latter, but not in the former case. No doctrine is better settled than that of the insurer's not The insurers being answerable, under the common form of the policy, for are not an- losses occasioned through the fault of agents employed by the drr*^the'com^' assured.(l) Mr. Justice Le Blanc says, ' If a loss happen from mon form of the want of that which the assured themselves ought to have the policy, for provided, it could not have been within the intention of the par- the acts oi a- ties to the contract, that the underwriters should be liable.'(2) ^'^^ ^' This doctrine is expressed in innumerable instances. It is not ^q^ ^ T2rs. limited to acts of fraud or intentional misconduct. Mr. Justice 39. Kent said, ' The insurers are not liable for losses arising from the (2) Bell r. mistakes of the owner or master.'(3) Ea«f 38^' ^^ Accordingly the insurers have been held not to be answer- (3) Ooixk able for a loss occasioned by the want of the usual documents Low, 1 Johna. of national character, although there was no warranty or re- 9^^' ^^^^p presentation on this subject.(4) The same opinion was given ham^i;! Hode;- respecting a loss occasioned by the captain's leaving the ship's son, 6 T. R. register on shore.(5) 656. This doctrine makes it necessary to determine who are the if^^^-^\. agents of the assured, and in respect to what acts they are g^gt 374. agents ; for it is a general rule that a principal is answerable on- rp, „^„ j 1 r .1 r 1 ■ 1 • 1 1 • e J ne assured ly tor those acts 01 his agent, which are done in pursuance 01 are answer- the authority, and in the exercise of the discretion, with which able only for he invests the agent. ^^ ^""^J^^* The owner of a ship constitutes the master and mariners his sy<,h^.^ agents for the navigation of the ship, and thereby renders him- . . „j^ ^j ^^ self answerable for their conduct in this respect ; but if, while ,,, (j^. i^g. they are engaged in this employment, they commit theft, or do Co. 8 Mas'si" an act of violence which is nowise connected with this employ- ^*^P- ^*^^' ment, and is not an act done in pursuance, and as a part of such employment, this does not concern the owner. This distinction is recognised 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 ex- tremely 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.'(6) Sir William Scott also no- (6) Scares r. tices the same distinction.(7) But upon what principles, and to ?1'^°™*°"' ^ u * . * u T .• .- • * V, ^ \ I * Moore, 385. what extent, such a distinction is to be made, has not as yet /^n r^j^^ j^^^_ been definitely determined. The owners of the ship are the nis, 5 Rob. agents of the shipper for transporting the goods, for which pur- 256. pose he employs other agents, namely, the master and mariners, for whose conduct in this employment, he is no doubt answer- able, in a greater or less degree, to the shipper. And it seems to be more generally implied, that in respect to the acts of agenU 29 226 Risks Covered. Chap. XIII. (1) Cleveland for which the owners of the ship are answerable to the shipper, r. Un. Ins. the insurers of the goods arc not answerable.(l) Re ^3^n^^' '^^^6 owners of the ship are answerable to the shippers for (2) LeVui- damage to the goods in consequence of bad stowage, or in con- don, c. 5. s. 9; sequence of any gross mismanagement, neghgence, or unskilful- Yiv w'^ "^^^ ^^ ^^^ master and crew.(a) Accordingly in conformity to 28 • Code de ^he principle above stated, the underwriters, whether on ship or Com. a. 164 ; goods, are not answerable to the assured for losses arising from 1 Emer. p. these causes, unless they render themselvTS so by insuring against 4 • 2*\' ^v' ^' barratry, or by some other specific provision in the policy, 79. h. t. a.28; which shows plainly that the insurers intended to take upon Poth. h. t. n. themselves the risk of the negligence, misconduct, or unskilful- ^^*^-o ^"^49^- ^^^^^ °^ ^^^^ master and crew.(2) Hodgson V. ' ^^ will appear by the cases subsequently cited, in what re- Malcolm, 2 spect the master and mariners are considered to be the agents N. R. 336 ; Qf the assured, and for what acts and negligence of theirs, the assured, and not the underwriters, are usually, and under the common form of the policy, considered to be answerable. As the assured is, in general, not entitled to indemnity for the faults, and negligence of the master and crew, the question between him and the underwriters, in this respect, is the same that it would be between two sets of underwriters, of whom one should insure against the usual perils, the other against the mistakes, negligence, and unskilfulness of the master and crew. The as- sured is considered, in all cases, to be his own underwriter, in respect to all risks not insured against in the policy. The ship is A vessel, parUy laden with powder, was blown up, in conse- biown up by qye^cg of one of the men's negligently placing a candle near ne^s*^of ama- the binnacle, which took fire, and by this means the fire was com- riner. municated to the powder. It was held that the assured was not entitled to indemnity for this loss.(3) Loss by resist- It has been held that if the captain and crew of a neutral n eo scare . ^g^j,^^ resist search, when it is rightfully demanded by bellige- (3) Grim v. rents, or attempt to rescue a vessel sent in by belligerent cap- Phoen. Ins. jors for examination, and the property, in consequence of such 451 ^"^See^r^' resistance or attempt to rescue it, is condemned in a bellige- Emer. 441. c. rent court, the loss cannot be recovered of the underwriters.(4) 12. 8. 18. But if the search is illegally and unjustifiablydemandcd and made, (4) Robmson ^^^^ j^^^^,^ ^^^^ ^j^g^j j^ jg j^Qt misconduct in the captain and crew to MasTYiep. resist it, and attempt to rescue their vcssel.(5) Upon the same r,36. See 9 principle Sir William Scott holds, that resistance of search is Cranch, G3; ^Q^^ blameablc in the master of a neutral vessel, who has not CoI."Mar.'^2 ^ccn informed of the declaration of war.(G) 118, 168. ' If, in case of shi|)wrcck, the cargo is saved, and the master ne- (r>) Hupr. 143. gleets to procure another ship to carryforward the cargo, where Juln 15 1 .titta ^ •'^'^'P ^^" conveniently be obtained for this purpose, the insurers b Rob. J. {(1.) Molloy, 1». 2. c. 2. p. 4 ; Abboit, c. 5 ; Jacobsen's Sea Laws, OT). U. 2. c. 1. In Great IJritain tl»o owners arc answerable to the Hhi|)[ters for dama^o of tliis description only to the amount of the vahi(! (,f tho ship and ireijrhl. 7 Gv.o. II. c. 17. Abb. 2G2. The law in thi-i respect is the saine lii Massachusetts. Stat. 1818. c. 122. \ Sect. 1. Jlcts of Agmis. 227 are not liable for the loss occasioned by this negligence.(l) In (i)Schieffelin case of capture, if a loss is occasioned by the neglect of the master ^'- New York to claim the property, the insurers are not answerable for the johns°2l- loss so occasioned, under a policy containing a warranty of neu- BradhurstV. trality, provided the master is, at the time of such neglect, to be Col. Ins. Co. considered the agent of the assured.(2) Mr. Justice Yeates, L^l^v^^^'^jgn- speaking of the acts of the agents of the assured as being those heiwel r. of the assured himself, says, ' If the assured, by his own mis- Unit. Ins. Co. conduct or neglect, should prevent the property from being ^r-o*^^^p' ^^^' finally recovered, the court will consider as saved what might ^^{^q\^ i^s. have been so but for his dcfault.'(3) Co. 7 Johns. The master of a vessel, on board of which a part of the crew 520. had died of the plague, came into the port of Marseilles with a The master false bill of health, and represented that the men had died in f};^^\ '^^if^^ ^ . ' i, „ , . . „-.i false bill of consequence oi ihe unwholesomcness oi the provisions. Ine health. vessel was accordingly permitted to come up to the town, and /gx ^^y^^^^ ^^ the men to come ashore, in consequence of which the infection Del. Ins. Co. is said to have spread among the inhabitants. The vessel was 4 Bin. 444. ordered to be burnt. Upon the ground that the loss had been oc- 434 ^^'I'o casioned by the fault of the captain, the court, in France, held 5.17. * that the underwriters were not answerable. (4) Losses occasioned directly or indirectly by the mistakes of ^^^ ^y ™^^" the captain, made through gross negligence, or from great igno- ranee of tiie" ranee and unskilfulness in his profession, cannot be recovered master. of the underwriters.(5) ... (5) Gregson Cases have occurred in respect to barratry and deviation, in v. Gilbert, which the question of the liability of the insurers for the igno- P^-'"^! ^03; rance and mistakes of the master was particularly considered. Goods were insured for a voyage from London to Jamaica. The vessel having" proceeded on the voyage, and cleared the Channel, was carried by a strong current and other causes out of her reckoning, until she was at length found to be between the Grand Canary island and Teneriffe. In that situation the course to Jamaica was to the south-west, but instead of steering this course, the captain, through ignorance, and without any fraudulent purpose, took a north-westerly course, towards the island of Santa Cruz, which was in sight ; and in consequence of putting into that island, the vessel was captured. Lord Kenyon, and all the other judges, in giving their opinions, and the counsel of both parties in arguing the case, took it for grant- ed that the insurers were discharged, unless this conduct of the master amounted to barratry. The whole case, therefore, pro- , . p, ceeds upon the principle, that the underwriters are not liable for j^oy. ex. Ass. any loss arising from the gross ignorance or mistakes of the Co. 7 T. R. master.(6) 501- A ship and cargo were insured on a voyage from Boston to New Orleans. There are two courses by which this voyage may be performed, the one through the South Channel, the other through the Vineyard Sound. It appeared from the testimony that the xisiml course of the voyage for vessels of the same des- cription with the one insured, was by the South Channel, but the master had taken the other course through the Vineyard 228 Risks Covered. Chap. XIII. Sound, though the wind was favourable for pursuing the other and the usual course. Chief Justice Parker instructed the jury that if the master went out of the usual course, through mistake, the insurers were discharged. Mr. Justice Sedgwick, giving the opinion of the court respecting the correctness of this in- struction to the jury, said, ' A general position that the mistake of the captain, under no circumstances, forms an excuse for a deviation, is certainly not true. The most skilful, discreet, and prudent master may commit mistakes. Where a captain of or- dinary skill and discretion forms the best judgment that he can, un- der the existing circumstances, for the interest of all concerned, the contract of insurance remains unimpaired. But in this case, if the captain had ordinary skill, and was informed, as he ought to have been, of the voyage he was pursuing, no fact exhibited at the trial amounts to an excuse of the deviation. On the other hand, if the deviation happened either from a want of skill, or the gross ignorance of the captain, that would doubtless (1) Brazier i'. defeat the claim of the assured to recover.'(l) Clap, 5 The principle of this, and of the preceding case, is the same; Mass. Rep. 1. ^j^^ insurers are not answerable for the gross and culpable igno- rance and mistakes of the captain. But it has already appear- (■2) Supr. 191. ed,(2) that the insurers continue to be answerable for the risks, (3) Austin V. notwithstanding any error of judgment in the captain, if he is Marsif'llep ^^ competent skill and capacity, and acts according to his best 130; 6 Taunt, discretion. Consequently, if any loss should, through the me- 436; 4 Camp, dium of some of the perils insured against, be the indirect con- '^^^' sequence of an error in judgment of a captain of competent skill in general, and who should act deliberately, and according to his best discretion, the insurers would be liable for the loss. The stock of Lord Ellenborough held, that the damage to the stock of a a sugar-house sugar-house, occasioned by negligently kindling the fire without damaged openinc: the register at the top of the buildine, was at the risk of through care- / ° i i . .i • /o\ lessness. the assurcd and not the insurers.(3) The captain Where the captain, by invoicing belligerent goods with those invoices belli- insured, licing neutral, and by claiming the whole as neutral, gerent goods occasioned the condemnation of the neutral goods, it was inti- with neutral, j^^^j^^j ^j^^^ ^j^^, insurers of the neutral goods were not answer- and claims , , ^ i • • r .i • / R the whole as able for a loss arising Irom this cause.(4) neutral. Two cascs havo, however, been decided, which seem to fa- The insurer* vour the doctrinc that the underwriters are liable for losses oc- are held lia- casioiicd by the negligence of the mariners. A Russian ship hm'fda'^hi) navigafcd by a Russian crew, was insured in England against by. the care- ' firc, ])arratry of the master and mariners, and all other perils.' lessness of the During the continuance of the risk (he ship was frozen up in "^^^^' Biorkoo Sound, in the gulf of Finland, and being left in the care (4)Cofrnif. ^^f j^j^^, mate, was burnt, in conse(|uence of his carelessness in Co.TmL'bs. leaving a fire in the cabin, while he went to pass the night on ilep. 4J(J. board of another ship. Mr. .Justice I^ayley said, ' The (jucstion is, whether the underwriters are liable for a loss by fire, that fire having arisen from the negligence of the person who had charge of the vessel. ThcTc is no authority which says the underwriters arc not liable for a loss, the proximate cause of Sect. 1 . Jlds of Agents. 229 which is one of the enumerated risks, but the remote cause of which may be traced to the misconduct of the master or mari- ners. When we find that they make themselves Hable for the wilful misconduct of the master, it is not too much to say that 0) Eusk r. they meant to indemnify the assured against fire proceeding from ^j°J'c^ b s/^' the negligence of the master or mariners.'(l) A. 73. The other case was that of an insurance ' on the boats of the The insurers ship Britannia, and on produce in said boats, or in any other are held liable craft employed in loading the ship, during her stay at St. Kitts.' jf''"^ ^^^^ by The goods were lost by the negligence of the crew. Chief ^^^^ ^^ ^j^^ " Justice Abbott said, ' The immediate cause of the loss was the crew, violence of the winds and waves. No case can be cited where, in such case, the underwriters have been held to be excused, in consequence of the loss having been remotely occasioned by ^cy\ Walker ». the negligence of the crew.' Mr. Justice Holroyd^ said, ' The Maitiand, 5 proximate cause of the loss was a peril of the sea.'(2) B. & A. 171. Though the principle should be adopted as unquestionable, Whatisnegii- that the insurer is not, under the common form of the policy, f^|ifui°gs"^e. answerable for losses arising from the negligence or unskilful- pends on ihe ness of the master or crew, still a question may occur in regard particular cir- to what amounts to negligence or mismanagement ; and this will cumstances. evidently depend upon the particular circumstances, and cannot be made the subject of any general rules. The pilot, who had charge of a vessel, sent two men ashore to make fast a line, and castoft'a former fast; and the men, immediately on coming ashore, were impressed, and the officers impressing them, being request- ed to permit them to cast off, and make fast, and also to send the boat back to the ship, there being no other boat belonging to her, refused to do either, but carried the men away and detained them ; and in consequence of the rope's not being cast off, the vessel went ashore and was damaged. Three of the judges held that the damage was not occasioned by any fault of the assured or his agents, and that the insurers were liable for the loss. Chief Justice Mansfield was however of a different opinion, and thought that the underwriters were not answerable (3) Hodgdon for the conduct of the press-gang, which was in effect holding "• Malcolm, that the assured were answerable for it.(3) 2 N. . It has been held that the acts of the consignees, by which a Acts of con- loss is occasioned, will give the assured no claim against the un- ^'S'^^^^- derwriters. Goods being insured from New York to Newborn, in North Carolina, the vessel was driven ashore at Ocracoke Point, about eight miles from Newborn, 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 again ; 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, (4) Ludlow r. there being no evidence of any actual damage to the goods from Col. Ins. Co. the vessel's running aground. (4) ^ Johns. 335. 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 230 Risks Covered. Chap. XIII. (t) Low r- Da^'j, 5 Bin. 595. Acts of the government of the assured. (2) Supr. 159. (3) Hornby r. Houlditch, 1 T. R. 93. n. (4) V. P 159. upr. said, ' These expenses must be ascribed to the agents of the as- sured, against whose acts there was no stipulated indemnity j' and this was the opinion of the court.(l) Where the assured are foreigners in relation to the underwri- ters, it has been held in some cases, which have been already cited,(2) that the assured cannot recover of the underwriters for a loss occasioned by the acts of the government of which the assured are subjects. These decisions have proceeded upon the ground that the acts of a government are those of its sub- jects. It is a maxim that every citizen consents to the acts of the lcgislature.(3) But it has already appeared that this princi- ple is not applicable, where the assured and underwriters are subjects of the same government, and it seems to be very doubt- ful Avhether it is applicable, where they are subjects of different governments. The decisions that the insurers are exonerated from losses by the hostile acts of a foreign government, of which the assured are subjects, rest upon an entirely different princi- ple.(4) The preceding cases afford a general illustration of the prin- ciple, that the insurers are not answerable for losses arising di- rectly or indirectly from the fault and gross negligence, igno- rance, or unskilfulness of the agents of the assured. The same principle is incidentally mentioned and recognised in many of the cases to be subsequently cited. Section 2. Barratry. Although the underwriters are held not to be liable, in gene- ral, for any loss occasioned by the fault of the assured or his agents, yet it has already appeared that they may, if they please, make a valid agreement to indemnify the assured against damage and loss by the negligence, or misconduct of the master and crew, or other persons, employed by the assured and entrusted with the pi-opcrty to which the insurance relates. The only risk of this description usually insured against, is that of the barratry of the master or mariners. Mr. Justice Willcs defines ])arratry to be ' every species of fraud or knavery in the master, by which the freighters or (5) Lockycr owners are injured ;'(^) and Lord Hardwicke defines it to be r, offlcy, 1 T. ' an act of wrong done by the master against the ship and foS^L(-wcn r goods.'(O) Mr. .luslico Aston says, ' it comjirehends every species of fraud, knavery, or criminal conduct in the master, by which the owners or freighters are injured.' 'Whatsoever,' says Lord Mansfield, ' is, by the master, a cheat, a fraud, a co- vering, or a trick, is barralry.Xo) Chief .Justice Lee said, ' to (a) Vallcjo V. Wheolor, Cowp. 50. Chief Justice Tilo'hman pivos the same dclinition in Wilcocks v. Un. Ins. Co. 2 Condy'3 Marsh. fi'M. n. TiOnl Manslidd says, '■ 1 take the word barratry to liavc boon orii^inaily introduced by tlio Italians. In tbo Italian dic- tionary barullurc lueans, to cheat.'' Cowpcr, 151. 'It is derived from Barratry de- fined. (0) Fuaiso, i'ostleth. Die Art. Aasur. Sect. 2. Barratry, 231 make barratry, it must be something of a criminal nature, as well as a breach of contract.'(l) Lord Ellenborough says, ' Barra- (i) stammai;. try includes every species of fraud in the relation of the master Brown, 2 Str. to his owners, by which the subject matter insured might be en- l}^^^'^ ^\ dangered.'(2) East, 136, It has been held that barratry may be committed by other per- cited by Lord sons, as well as by the master and mariners of a ship, and on land Ellenborough as well as at sea. Goods being insured ' from London by land ,^s y,^^{^ \,^ carriage to Harwich, and thence by a packet to Gothenburg,' iiowcroft, « were lost between London and Harwich, by the fraud and negli- East, 126. gence of the carriers. Lord Ellenborough said, ' the word barratry was large enough to include every species of fraud committed by the wagoner, or servants.'(3) (3) Boehm v. Two circumstances then are requisite to constitute barratry; ^°^\^^J^^' r 1 , • 11 . 1 / ^ S. 172. an act oi the master or manners, to be barratrous, must be oi a fraudulent nature, and one that is prejudicial to the owners of the vessel. It is accordingly to be inquired on this subject, what acts are of a barratrous kind, and, in the case of a chartered vessel, who are to be considered as owners of the vessel, in re- spect to acts of barratry. It was held to be barratry in the master to attempt to evade Evading fo- the duties in a foreign port, whereby the vessel was exposed to ^'^■'g"PO''t forfeiture. (a) Goods being insured by a general ship, held under a charter- Deviation for party from Willes, the owner, by Darwin, for a voyage from the captain's London to Seville, with liberty to touch at Cornwall for provi- pr'jatepur- sions, the captain, instead of sailing with the other vessels bound ratry.' on the same voyage, lay at the Downs till night, when he sailed for Guernsey, out of the course of the voyage, to take in brandy and wine on his own account, and without the knowledge of the charterer. The night after sailing from Guernsey, the ship sprung aleak, which obliged the captain to put into Dartmouth, whence, after refitting, he proceeded towards Cornwall, but the ship receiving still further damage, was found, on arriving at Helford, in Cornwall, to be totally unfit to proceed on the voyage, and the goods were much damaged. It was contended in be- half of the underwriters, that the going to Guernsey was a de- viation, and not barratry. Lord Mansfield said, that Darwin must be considered owner in respect to barratry. ' The master had agreed to go on a voyage from London to Seville, instead of which he goes on an iniquitous scheme, totally distinct from the voyage : that is a cheat and a fraud on Darwin, who thought he barat^ i. e. fraud, dolus.'' Knight v. Cambridge, 1 Str. 581. See also S. C. 8 Mod. 230 ; 2 Lord Raym. 1349; Phyn v. Roy. Ex. Ass. Co. 7 T. R. 505; See 1 Emer. 366. c. 12. s. 3. Negligence and miscon- duct in the captain, though without fraud, are considered to be bar- ratry on the continent of Europe. 1 Emer. ut Supra. (a) Knight v. Cambridge. It does not appear in the reports of this case what act of the captain was considered to be barratry ; but from Stamma v. Brown, 2 Str. 1173. and Vallejo v. Wheeler, Cowp. 143. it appears to have been an attempt to evade duties. 232 Risks Covered. Chap. XIII. (1) Vjillejot'. would set out directly. The moment the ship was carried out "Wheeler, of its course, it was barratry ; and here the loss was immedi- Se^s* C ' ^^^^y upon it. Suppose the ship had been lost afterwards, what Lofft, 645, would have been the case of the assured, if not secured against •where the the barratry of the master? He would have lost the insurance facts are more -^y the fraud of the master ; for it was clearly a deviation, and see 1 ' Therefore I am clearly of opinion that this smuggling voyage Johns. 235. n. was barratry in the master.'(l) The captain In a case of the captain's dropping anchor in the Mississippi, drops anchor and going ashore to find a mal-ket for his own private adven- on a°ccoun7of ^"^'® ^^ negroes on board. Lord Kenyon said, ' the barratry his own af- commenced when the captain first went out of his course.'(2) fairs. But a deviation to pursue a vessel that had been run away with Deviation for by the Seamen, on a compensation of a hundred pounds sterling the interest of being offered, the master having no exclusive view to his own benefit, has been held in Pennsylvania not to be barratry.(3) Cruisin-^ a- ^^ ^^ barratry in the captain to cruise contrary to the inten- gainst instruc- tion and instructions of the owners. The owners of the vessel tions. took out letters of marque merely for the purpose of inducing (2) Ross V. seamen to ship, without any intention that the vessel should Hunter, 4 T. cruise, and accordingly the clearance requisite by statute to au- /^\ H^^^i thorize the vessel to cruise for prizes, was not taken out. The (J) Hood's • , . • ^ 1 T • 1 • 1 11 Exrs. V. Nes- captam s mstructions were to proceed to Liverpool with ail ex- bitt, 2 Dal. pedition, no mention being made of the letters of marque. The 114*^ ^^^^^' captain, hoAvevcr, after getting out to sea, with the consent of a major part of the crew, commenced cruising, and having plun- dered one American vessel, after some days fell in with another prize, which he carried into Bermuda. His own vessel was there driven ashore in a storm, and the cargo was lost. Lord Kenyon said, the stopping to j)lunder the American vessel was barratry in the captain, ' because it was contrary to his duly to his owners ; it was to the prejudice of the owners because they stipulated by the charterparty that the vessel should sail directly for Liverpool. Lawrence, J. said, ' Whatever was done by the captain to defeat or delay the performance of the voyage, was . . M , ■ barratry in him, it being to the prejudice of his owners. When Byrom, GT. ^^ Stopped the American ship to examine and plunder her, ho 11. 379. was guilty of barratry .'(4) Stopping to A ca))tain took a letter of marque, with an understanding that take posses- Jif. ^ygs [q jjce it Only for the purjiose of defence. Meeting with 8I0U of a prize. ^ vessel of thc enemy on the voyage, which surrendered to him without resistance, he stopped between two and three hours to take possession of the prize and put a prize-crew on board of it. 'i'his was held to be a deviation, but not barratry in the ca])tain, as it seemed lo be rather 'a mistake of his duty,' than any ' gross malversation,' and he acted by the advice of the su- percargo, and also of the owner of a ])ai't of the cargo, Avho was on board. Chief .Justice Parker, giving the opinion of the court, said that, in the above case of Moss v. Byrom, ' thc cir- (5) Wiggin r. cumstanccs were considered to afford an inijiutation of crime or Amory, 14 frniid against the master,' in which it was distinguished from this Mas.. JUp. 1. case.(.0) Sect. 2. Barratry. 233 A policy was made on goods for a voyage from London to The captain Jamaica. The vessel after being carried out of her I'eckoning deviates with- by strong currents and other circumstances was found to be out any fraud- between the Grand Canary and the island of TenerifTc, when the captain put into the island of Santa Cruz, which was in sight, instead of taking the course to Jamaica. The jury found that the captain's going to Santa Cruz ' was a deviation, and was owing either to ignorance or to something else, hut that it -was not (*) ^"^ '.' fraudulent.'' The court were of opinion that this was not barra- qJ/'j t.'r.^^' try, to which they thought fraud essential. (1) 501. It is barratry in the captain to expose the ship to seizure by Trading with trading with the enemy. During Avar betAvcen England and the ^^^ enemy. 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 set- tlements, proceeded to D'Elmina, a Dutch fort, where he ex- changed his cargo, consisting among other things of muskets and gunpowder, for slaves. He had a commission of letter of marque, authorizing him to capture Dutch and French vessels. His object in going to D'Elmina Avas to exchange his cargo as cheaply and expeditiously as he could. Besides his regular pay he Avas entitled to commissions on his purchases. The vessel was seized and forfeited, in consequence of this act. Lord Ellenborough said, ' It has been asked, hoAV this act of the captain in going to D'Elmina, in order to purchase his cargo more cheaply and expeditiously for his OAA'ners, is a breach of trust, as betAveen him and them ? Noav I conceive the trust re- posed in the captain of a vessel, obliges him to obey the Avritten instructions of his OAvners, Avhere they give any ; and Avhere his instructions are silent, he is at all events to do nothing but Avhat is consonant to the laAvs of the land, Avhethcr Avith or Avithout a vieAV to their advantage. In the absence of express orders to the contrary, obedience to the laAv is implied in their instruc- tions. I cannot, for a moment, suffer it to be supposed that a captain is not guilty of a breach of trust to his OAvners, Avho does an act Avhich is injurious to them.' He saj^s that barratry is synonymous Avith fraud, both from the derivation of the Avord and the adjudged cases, and that it 'in- cludes every species of fraud in the relation of the master to his oAvn- crs, by Avhicli the subject matter insured might be endangered.' He refers to the above cases of Stanima v. Brown, and Val- The captain's lejo V. Wheeler, as shoAving that the circumstance of private regard to his benefit, accruing to the master, Avas evidence of fraud in the par- ^^d disrec^ard ticular case, and not essential to barratry in all cases Avhatso- of his owners' ever. He says that Mr. Justice Buller Avas of opinion, that sail- is.not essential ing out of a port, in violation of an embargo, Avas barratry. *° barratry. ' After these various decisions Ave are certainly warranted in pro- nouncing that a frauduleni breach of any duty by the master, in respect to his OAvners ; or in other Avords, a breach of duty in respect to his oAvners, Avith a criminal intent, or ex malefcio, is barratry. And Avith respect to the OAvner of the ship or goods, whose interest is to be protected by the policy, it can make no 30 234 Risks Covered. Chap. XIII. difference in the nature of the thing, whether the prejudice he suffers is owins; to an act of the master, induced by motives of advantage to himseli, malice to the owner, or a disregard to those laws which it was the master's dutj^ to obey. ' It has been strongly contended that if the conduct of the master, although criminal in respect to the state, were, in his opinion, likely to advance his owners' interest, and intended by him so, it will not be barratry. But to this we cannot as- sent. For it is not for him to judge in cases not. entrusted to his discretion, or to suppose that he is not breaking the trust re- posed in him, but acting meritoriously, when he endeavours to advance the interest of his owners by means which the law for- ■ bids, and which his owners also must be taken to have forbidden, not only from what ought to be, and therefore must be, presumed to have been their own sense of public duty ; but also from the consideration of the risk and loss likely to follow from the use of such means.' ' In giving this opinion w^e feel no apprehension that simple deviation will be turned into barratry ; for unless it be accom- (1) Earle v. pj^^jg^-] ^y^j^ fraud or crime, no case of deviation will fall within East, 126. the truc definition oi barratry, as above laid down. (1) The master of a vessel took belligerent goods on freight, which he agreed to cover as neutral. The freight was to be paid to his owners, but he was himself to receive u douce^lr besides. Mr. Jus- tice Yeates told the jury that this was barratry, if the master had a particular view to his own benefit ; but if they supposed him to be the general agent of his owners, and to have acted wholly (2' Croiisillat ^^^ ^^^J^' account, it was not barratry.(2) But according to the r. Ball, 4 Dal. preceding case this seems to have been barratry, with Avhatever ^9"^- views the captain acted. Collusion It is barratry in the captain to occasion the ca})ture of the with the ene- gj^jp \^y {jjg collusion with the commander of a privateer ;(3) or Ibranencmy-! ^^ ^ail fraudulently for an enemy's port.(4) port. Mr. Justice Brackenridge was of opinion, that the captain's Wilful viola- persisting ia an attempt to enter a blockaded poi't, after being lion of block- warned off by the blockading s()uadron, was barratry.(5) ^^^" In another case, it would seem, from some expressions used (3) Archangc- , ^j^.^ Justice Kent, that he Avas of a different opinion : his ex- son, 2 Camp. prcssioMS wcrc, howcvcr, used wiiii jiarticuiar reierence to 020. aftother point. Mr. Justice Radclifi", who gave his opinion at (4) (ff'|fl- lorigih, in the same case, said'nothing on the subject of barratry ; Vvhitmoif' 3 though it appears from Avhat was said by Mr. Justice Ken(, Taunt. 5rrcd to his |)riricipal who appoints him, and whenever a loss haj)i)ens through the master's fault, unless that fault amounts to barratry, the owner Sect. 2. Barratry. 235 and not the insurer must bear it. It is a fault in the master to occasion a loss to the property, from his carelessness or want of competent skill; and much more is it the case, if he wilfully occasion that loss, as by resisting search, breaking a blockade, &c. It is a point not to be disputed that an attempt knowingly to break a blockade, is a violation of neutral duty, and occasions a forfeiture of the property, and it cannot be supposed, unless i^g c^q^^^"' it be so expressed, that the insurer takes upon himself such joiins.Cas. risk.'(l) IB"^- Taking this case, according to the judge's description of it, to be that of an attempt nnlfdly and knozvingly to violate a block- ade, in consequence of which the vessel and cargo were ex- posed to capture and forfeiture, and were in fact captured and for- feited ; it is difficult to distinguish the case from those which have been adjudged to be barratry in England, unless the ground be assumed, that the warranty of neutrality took the captain's con- duct, as respects that Avarranty, out of the risk of barratry. If this distinction be not made between a policy containing a war- ranty of neutral property, and one containing no such warranty, thenjhe Vv'hole case, as stated by Mr. Justice Kent, seems to answer very exactly to those of barratry above cited. But the case is perhaps stated more strongly by the judge than it was considered by the court, in giving their judgment in favour of the insurers, and so it seems from the testimony of the mate, as it is reported ; as also from what the same judge says in other parts of his opinion, as well as from the opinion of Mr. Justice Radclilf; from which it appears that the captain did not rcilfully and knGzv'tngly do an act which he supposed would be a breach of the blockade, for he expected to be warned off for the first attempt to enter, though he had previous notice of the blockade ; he therefore appears to have done an act, which was legally a breach of the blockade, and so adjudged both in Eng- land and the United States, but which the captain supposed, at the time, not to amount to such a breach. This makes it a mis- take, instead of a fraud or crime wilfully and knowingly com- mitted by the captain, and if it be so considered, the case is sufficiently distinguished from those of barratry above men- tioned ; and is in conformity to what Mr. Justice Washington ,o-n o j said, in another case, namely, ' that if the captain ignorantly j^jej^ j„s. (Jq' commit a breach of blockade, or violate some foreign ordi- 2 Condy's nance, the illegahty of the act will not make it barratry.'(2) Marsh. 534. n. The same distinction is made in all the cases between acts done by mistake, or through want of due vigilance and prudence, and those of intended misconduct. In the case before mentioned of a vessel, partly laden with powder, being blown up by a candle's being carelessly placed, in which the loss was claimed under the risk of barratrj', Chief Justice Thompson said, that ' an act, to be barratrous, must l)e done with a fraudulent intent. (^) ^'"'"^ ''• Barratry is a fraudulent breach of duly in respect to the own- q^^ 13 Johns. ers.'(3) 451. That the warranty of neutrality does not diminish or affect a warranty d the risks assumed by the underwriters, under barratry, may be neutral pro- 236 Risks Covered. Chap. XIII. perty does not very directly inferred from another case decided by the same iminishthe eourt. It was upon a policy on the ship Ann, ' warranted free risks insured ~ iii i-i •• against under irom any charge, damage, or loss, which may arise in consc- barratry, sequence of seizure or detention of the property, for, or on ac- count 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 v/hich no mention was made in the log-book. The vessel was seized and condemned at St. Domingo, on account of having this arti- (1) Sucklyf. cle on board, which was there prohibited. The court said, Deiafieid, 2 ' We have no doubt on the conduct of the master ; it was cer- Caines, 222. ta inly barratry .'( 1 ) In an action on a policy upon goods warranted neutral, bar- ratry being one of the risks insured against, Chief Justice Tilgh- man said, that ' taking the whole instrument together, he thought it most reasonable so to construe it, as to leave the insurance (2) "Wilcocks, against barratry in full force. On this principle the warranty 2 Bin. 579 • °* ^^'^^^ i^iply, that as to all acts to be done by the assured them- 2Condy's ' selves, or by their agents, except only such as amount to barra- Marsh.534.n. try, the neutral character shall be preserved. '(2) If the captain smuggle goods without the consent of his own- ers, it is barratry. This was decided in an action on a policy (3) Havelock ' upon all lawful trade,' for, said Lord Kenj^on, ' the words lazv- T ^^°977 ^ "^"^ trade, in the policy, mean the trade in which the ship is sent (4) Piiionk ^y ^^^ owners.'(3) In this case the court said, the ow^ners, hav- Cope, 1 ing conducted with propriety, Avere entitled to indemnity. Camp. 434. But if the owners are in fault in not preventing any act of TT /°^7' ^'* the master or mariners, though they do not directly assent to it, Un. Ins. Co. , . , ' .& J.. J ' of N.London, "^^ act IS not barratry; as in a case in Avhich it appeared that 6 Hall's L. J. the mariners had three times successively subjected a vessel to m n H 1 ^^^ danger of seizure and forfeiture, by smuggling, though wiih- L)el. Ins!'co!' ^^^ ^^6 knowledge of the owners. The loss claimed was occa- 2 Condy's sioncd by these seizures. Lord EUenborough said, ' This is a Marsh. 534. n. clear case of crassa negligentia on the part of the assured. It cockshy U * " ^^'^^ ^'^ f^^ty to have prevented these repeated acts of smuggling Ins. Co. ut' by the crew. By his neglecting so to do, and allowing the risk supr. to be monstrously enhanced, the underwriters arc discharged.'(4) Resistance of A resistance of search, by a neutral captain and crew, when search. [i jg rightfully demanded by a belligerent, has been held to be barratry.(5) Upon the same ])rinciple the rescue of a neutral vessel detained, and sent in for examination by a belligerent, is barratry in the captain and crew, this being, in eftect, a resist- ance of the right of search. (G) Wilfully ne- The conduct of the captain in sailing with an unfavourable glectin^ to wind, contrary to the directions of the pilot, he having before sail with a fair refused to sail wlien the wind was fair: and hisdisrcgardinc: the wind, and cut- -i o • , ,• • ,i . .i i • i- i r .i ting the cable P''"t -S instructions in other respects, thougli informed of the con- so as to irt scfjuences ; and his conduct in cutting the cable so that the ship the ship drift drifted on the rocks, were considered to be acts of barratiy. upon rocks. [^ ^^.^^ objected that there did not appear to be any fraud. Lord EUenborough said, 'Thi^ is not necessary. It has been Sect. 2. Barratry. 237 solemnly decided that a gross malversation by the captain, in his (i) Heyman office, is barratrous.'( 1 ) '•; I'arish, 2 Chief Justice Thompson says, ' it is well settled that an act ^^"^P- i^^; to be barratrous must be done with a fraudulent intent,\2) as ^J^^^^ ^f 'be distinguished from an act done through mistake or carelessness, barratry.^^ But negligence may be so gross as to amount to criminality or fraud. This is a general doctrine, and it is adopted by (2) Grim v. Lord Ellenborough in relation to barratry. A number of (-.^^"3 j^ohns. the preceding cases show this. Those which make the in- 457. tentional evasion of foreign port duties barratry, cannot be supposed to turn upon the criminality of this act, as it is not, as we have seen, esteemed to be in any degree unlawful or blame- able in the clffitain to violate foreign revenue laws. It is on the ground of fraud then. But there is no other fraud than that of knowingly exposing the ship and cargo to seizure. This is a breach of his duty to his owners, and it is no less so to expose the property to a loss by gross and inexcusaVjle negligence. If barratry depend on the misconduct of the captain, or the de- gree to which his conduct is reprehensible, extraordinary care- lessness may constitute barratry no less than any positive act of fraud. 'If the master, knowing; the inevitable danger of capture if (^) Richard- ', ^ . ^ . • • soil Vm JVlciinc he proceed on his voyage, should notwithstandmg contmue it, ^^^ ^^ g and expose the vessel to certain seizure, this will be barra- Mass, Rep. try.'(3) 1^^' 121. The assured cannot recover for a loss by a barratrous act of the master done with the consent of the owner, or the person who is considered to be such, in respect of barratry; for, says Lord Mansfield, ' nothing is so clear as that no man can com- (4) Cowp. plain of an act to which he himself is a party.'(4) In such 155. case the act cannot be said to be done against the owner. The Embezzle- captain of a ship, a Frenchman, with the concurrence of one of o^^^^t of the the owners of the vessel, also a Frenchman, by means of new consenTof the bills of lading, and with the design of embezzling the property, ship-owners, put the cargo into the hands of a person named as consignee in the new bill of lading, but to whom the goods had not in fact been consigned by the shipper. 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 considered, 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 (5) Nutt v. and mariners, the very terms of which imply that it must be in ^ °'i['^ 3"^ ^ the relation in Avhich they stand to the owners of the ship. An ^g\ ^ j ' owner cannot commit barratry; he may make himself liable by 370. c. 12. s. his fraudulent conduct to the owner of the goods, but not as for 3. See also barratry. And besides, barratry cannot be committed against ^^75'^"7*^g'^" ^' the owner with his cojisent.Xo) The circumstance of the captain's acting as agent of his own- A master may ers, or of the shippers, in another capacity, is considered by ^"'"^'^ ^X^h' Emerigon ;(6) who says, that in such case, his acts as consignee jg supercargo. of the cargo or factor, must be distinguished from those which 238 Risks Covered. Chap. XIIL he does in his capacity of captain ; for it is only in this capa- city 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, by boriiig holes in her bottom. ' 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 ,,.T,^ , . , master of the vessel. He could not lay aside his character and (1) Kendrick ..... ., , i i i ,• 11 r. Delafieid, responsibility as master, until the vessel had perrormcd her voy- 2 Caiues, 67. age, and arrived at her port of destination. '(1) But from another case, decided by the same court upon a po- licy on the cargo of the schooner Despatch, frdffi Havana to New Orleans, and at and from thence to New York, the captain being supercargo and consignee of the goods, it seems that he continues to act as captain in port. The cargo consisted partly of specie. On arriving at New Orleans, the captain converted the specie to his own use, abandoned the voyage, and abscond- ed. The assured Avere owners of both the vessel and cargo. It was contended, in behalf of the underwriters, that ' there could not be barratry in relation to the cargo, Avhen 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. But the court said, ' This was clearly a breach of duty in his character (2) Cook r. of master of the vessel, and though he had a superadded char- Com. Ins. Co. acter of consignee, the ac* was properly imputable to him as 11 Johns. 40. niaster.'(2) Mr. Justice Kent is reported to have said, 'It is a question, whether even barratry, with the concurrence of the owners of goods, will exempt the insurer of goods belonging to an innocent (3) Kendrick shipper. The English authorities do, however, look very strong- r. pelaficLl, ]y [q []^q opinion, that the insurer M'ould not, in such case, be " ^'"^°' ' • responsible. '(3) 1 do not know of any English authorities to this effect, nor is the position supported b_y the passages in Mil- lar, 1G5, 167, and Marshall, 452, referred to by the judge, which makes it not improbable that there is a mistake in the report, and that it ought to be, with the concurrencv of the ozcners of thr ship. Kmbczzle- 'V\\Q preceding cases show tliat theft and embezzlement are mc-nt or wilful iu their nature barratrous acts, if, without any fault on the destruction of part of thc assurcd, the ca])tain run away with the property in- If '^thl^cai!-^ surcd, while it is at risk,(4) or purposely destroy it, this is no doubt tain. J^n act of barratry, ;ind many of the above cases proceed upon (4) Faulkner this supposition. If liiirratry be insured against in a policy up- M 'x!*'i^"'J>on • ^^^ ^^^ •'"'^'P *^^ cargo, the loss must in general be the (kimage or Marcadier r. ' destruction of the suliject insured. I^ut if the freight be thc Ches. Ins. Co. subjcct of tlic policy, the loss upon this interest may, in regard 8 Cranch, \i\). ^q ^\^\^ y\sV^ as \\v\\ :is others, be the consequence of the damage or destruf lion of \\\v sliij) or cargo. It will subsequently ap- pear that if freight lie insured against sea-risks, and in conse- quence of the loss of the goods by those risks, the ship is pre- vented from ciii'ning iVright; this is a loss \vitliin [hv ])oliry. Sect. 2. Barratry. 239 There seems to be no ground of distinction, in this respect, be- tween an insurance against sea-risks, and one against Barratry. There are few cases on the subject of barratry of trie mari- Barratry of ncrs, though this risk is one of those comprehended in the the mariners. greater number of policies. It cannot, therefore, be very defi- nitely determined what acts of theirs will amount to barratry. The control and superintendence which the assured has of their conduct, and is supposed to exercise through the captain ; and the little trust that is ordinarily and necessarily re})Osed in them, render the assured answerable for their conduct in a much greater degree than he is for that of the captain ; and accord- ingly the insurers are in proportion less answerable 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 captain, and therefore where an act barratrous in its nature is done by the mariners, the insurers are answerable for a loss occasioned by it, if, Avith due precautions and diligence, it could not have been prevented. Jn regard to petty thefts and embezzlements, the insurers are in general held not to he answerable for them, since Avith due vigilance and care they might be prevented. Losses of this ^ description are usually paid by withholding the wages of the guilty parties, or of the whole crew, to tlie amount of the loss. But when any crime or fraud is committed by the mariners, The insurers under such circumstances, that it could not have been prevented are answer- by the prudence and vigilance of the assured, or the captain ^^}^ ^•^'" ^^""^ who acts in his stead, the insurers against the barratry of frauds oTthe the men are liable for the loss. Thus where the crew com- mariners, pelled the captain to change his course in one case, for the which could purpose of bringing in a prize,(a) and in another, Avhere they "ot be pre- compelled him to return to the port of departure, from an ap- prehension of corsairs,(l) it was held that the insurers were (i) Driscol r. still answerable under the policy, which shows that they were Vassmore, i ansv/erable for the consequences of this conduct in the crew, ^^' "^^ ^'' ~^^' for unless they were so, they would probablj^ have been held to be discharged from the risks, in these cases, on account of devi- ation. Where four of the mariners conspired with some prisoners of ^ war on board, and ovcrjiowercd the master and the rest of the crew, and ran the ship ashore, it was determined to be a loss ^^v ?" ""'" - ' . I ' i. Anderson, by barratry .(2) _ l Taunt. 221. These instances show that where the cause of the loss is a superior force, originating with the crew, the insurers are an- (3) Pipon r. swerable. This responsibility is not limited to acts of the ma- Cope, i riners that are accompanied with violence, for in a case(3) in ^^"^P- '^■^*^- which a loss was claimed on account of the barratry of the mariners, in smuggling goods. Lord Ellcnborough Avas of opinion (a) Elton V. Brogden, 2 Str. 1264. See 1 N. R. lOG. and Park, 142. n. whether this case of Elton t'. Brogdeu, was barratry. See also Lord Mansfield's remarks upon this case in Vallejo v. Wheeler, 4 Cowp. 143. 240 Risks Covered. Chap. XIII. A master who is owner can- not commit barratry. (1) Marcadier r. Ches. Ins. Co. 8 Cranch, 39. (2) Ross V. Hunter, 4 T. R.33; Stein- back r.Ogden, 3 Caines, 1 ; MUntyre v. Bowne, 1 Johns. 229. (3) Lewen v. Suasso Pos- tleth. Diet. Art. Assur. The charterer of the ship may be consi- dered owner in respect to barratry. (4) Vallejo v. AV heeler, Cowp. 143. (o)Lofr(,C31. that the assured could not recover, because the smuggling might have been prevented, by the exercise of proper vigilance and prudence on the part of the assured, or rather of the captain, who acted in his stead. This implies that if the act of the ma- riners could not have been prevented, the insurers would have been liable. 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.(l) But if there be 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 oif indem- nity.(2) Where the captain was general owner of the ship which he had bottomried and mortgaged, but of which he had the con- trol and navigation. Lord Hardwicke held that he could not commit barratry, so as to give the assured on goods, a claim against his underwriters under this risk. (3) It is held that the underwriters may take upon themselves the risk of the conduct of persons entrusted with the property by the assured. There seems to be no reason against extending the indemnity in favour of owners of the cargo, to the acts of a mas- ter who is owner, as well as to those of a master who has no inte- rest in the ship. But to render the insurers of goods liable for losses by barratrous acts of the master, who is an owner of the vessel, would require some special provision in the policy. Under the construction of the common form of the policy, which has been adopted and uniformly preserved in England and the United States, the insurers on goods are not, under these circumstances, liable for a loss by the barratry of the master. Barratry is said to be an act prejudicial to the owners of the ship, but the charterer may be the owner for this purpose. In a casc(4) cited above, Willes, the owner of the vessel, consented to the barratry. But the charterer was considered to be owner, in relation to barratry'", and accordingly it was held that an act, to be barratrous, must be prejudicial to his interest, but that it was not essential that it should be injurious to the inte- rest of any other owner; the assent of the actual owner of the vessel, and his participation in the captain's act, did not therefore prevent its being considered to be barratry. Lord Mansfield said, in this case, ' It is material whether the owners of the goods have the direction. If the ship be let as a house, (hen the freighter is owner, but if it bo only a covenant that the sliijj shall go only that voyage for the freighter, then he has only the use of the vessel. '(-5) It does not ajipcar lliat the charlcrer victualled and manned the shij) 5 or a))pointcd the master; it seems that Brown, the master apjiointed l)y Willes, the owner, made an agreement with Darwin, the charterer, for the freight of the whole ship, for a voyage from London to Se- ville and back to London ; and that the ship was then put up as a general ship for that voyage, on account of Darwin, the char- tci'cr ; and the assured, and a nuuiber of other persons, shipped Sect. 2. Barratry. 241 goods for the voyage. These shippers accordingly coiUracted with Darwin for the freight of their goods. Darwin had the di- rection of the ship as to the course she should take, and the mode in which she should pursue this voyage, for which he had the entire use of the ship. This is the ownership and control of the vessel which seems, in England, to constitute the charterer owner as to barratry; it does not appear to be requisite for this /^n Y.veT{\\ v. purpose that he should victual and man the ship, or have the Hannam, 2 appointment of the master.(l) Marsh. 339. It is held in England that if the entire ship be let for a voy- age, the general owner cannot, under a policy against barratry, recover for a loss occasioned by an act of the captain to which the hirer consents. 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 con- trol of the ship, during the period of the charterparty. Wood- man consigned the ship to Kendal, at Rio Janeiro, ' whose or- ders he desired the captain implicitly to obey.' Kendal being at Bueno^ Ayres at the time of the ship's arriving at Rio Janei- ro, his partner, at the latter place, ordered the captain to pro- ceed to Buenos Ayres. He accordingly proceeded to Buenos Ayres, where Kendal sent smuggled goods on board, in con- sequence of which the ship was seized and condemned. Lord Ellenborough said, ' 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 a?) Ilobbs r. pretence for imputing it to barratry.'(2) It does not appear at Hannam, 3 whose expense the ship was navigated in this case. Camp. 93. Soares and his partner, of London, agreed with the captain and owner of a Portuguese brig, to carry a cargo of flax and hemp from London to Figueira, and proceed thence with such cargo as the captain might choose to take on his own account to Pernau, in Russia, and there to take on board for Soares and his partner a hundred tons of flax for Oporto, and to give them the preference as to taking on board other goods sufficient to load the ship. The ship sailed from Pernau wnth a cargo be- longing wholly to Soares and his partner, and in the course of the voyage the captain purposely run her on shore, Avhereby the cargo was greatly damaged. The vessel appears to have been manned, victualled, and navigated by the owner, and not by the freighters. In regard to a claim upon the insurers of the goods against barratry. Chief Justice Gibbs said, 'The ob- jections are that the owner being on board of the vessel, and having acceded to the act of running her on shore, it could not assume the character of barratry. Barratry being an act of fraud against the owner of the ship, if he agree with the captain to the cortimission of that act, it cannot be barratry as against him, for his own concurrence thereto precludes it. There was only one period of the voyage in which the owner could excr- 31 242 Bisks Covered. Chap. XIII. cise the right of loading the brig ; he might freight the vessel from Figueira to Pernau, but he did not do so. At Pernau the assured, as freighters, completely loaded the vessel. The owner's right to interfere, therefore, was completely at an end. Such being the case, the freighters had the exclusive control of the vessel from that period. Although the loss happened by the connivance of the original owner, such loss would amount to (1) Scares f barratry, as it was committed without the concurrence of the Thornton,"i * freighters, who had a full cargo on board. This therefore is a Moore, 373. loss by barratry.'(l) Mr. Justice Story, giving the opinion of the court, says, ' Bar- ratry may be committed against a person who is owner for the voyage, although he may not be general owner of the ship. A person may be owner for the voyage, who by a contract with ■the general owner, hires the ship for the voyage, and has the ex- elusive possession, command, and navigation of the ship. Where the general owner retains the possession, command and naviga- tion of the ship, and contracts to carry a cargo on freight for the voyage, the charterparty is considered as a mere aft'reight- ment grounding in covenant, and the freighter is not clothed with (2) Marcar- the character or legal responsibility of ownership.' Accord- dier v. Chesa- ingly it was the opinion of the court, that the case then under peakelns. Co. consideration, was not a case of barratry, because ' the master. See also Hooe' ^^o was general owner, retained the exclusive possession, com- I'.Groverman, mand and management of the vessel, and she was navigated at lCraach,2l4. his expense.'(2) It was verbally agreed that the master should have the con- trol of a vessel, from November to May, and victual and man her at his own expense, but the owners were to defray the ex- pense of repairs. For the use of the vessel during this time, the (3) Ta^gard master was to pay over to the owners, one half of her earnings. r. Loring, 16 It was held that this agreement made the master the owner of Mass. Rep. t^g vessel as to barratry ; and accordingly that ' the offence of barratry could not be committed by him. '(3) In a case decided in New York, M'Intyre, the assured, and 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 Curracjoa, ' exccj)ting one half of the cabin, the privi- lege for twenty barrels for the master and mate, and so much of the hold and forecastle, as was necessary for the accommoda- tion of the master and crew, provisions,' &,c. M'Intyre effected insurance on the vessel for the same voyage. Brice acted as su[)crcai-go. While the vessel was proceeding on her return from Trinidad towards Curi-a(;oa, the master, at the request of Brice, and on being ])romiscd one hundred dollars with indem- nity to himself and his owners, changed his course and went to a port on the Sjjanish Main. A loss afterwards occurred, which was claimed under the risk of barratry. Mr. Justice Thomp- son, in giving the opinion of the court, said, 'The right of the assured to recover will depend on the determination of the cjues- tion, who is to be deemed owner of the vessel for the voy- age. I should not consider Aiken and Brice as owners for the voyage. I apprehend the distinction to be, that where, by the Sect. 2. Barratry. 243 terms of the charter, the ship-owner appoints the master and mariners, and retains the management and control of the vessel, the charter is rather to be considered a covenant to carry goods ; but where the whole management is given over to the freighter it is more properly a hiring of the vessel for the voyage,'(l) and .^. -^ii^iy^^ in such case the freighter would be considered the owner pro ^^ Browne, i hac vice. Johns. 229. In a case under a policy upon goods, a loss was claimed for barratry of the master, who hired the ship of the owners at a certain sum per month, the owners agreeing to keep the vessel in repair, and she was to be at their risk ; but the captain was to victual and man her. The captain embezzled the cargo. The court said, ' The master was to be considered owner pro hac vice^ or for the voyage insured. There was a complete let- ting of the entire vessel for the voyage. He had the whole management and control.' And it was adjudged not to be bar- ratry.(a) It appears very distinctly from the preceding cases that, in England, to constitute the freighter owner, as to acts of barratry, it is sufficient that he has the use and control of the ship for a cer- tain voyage or time ; but it is not necessary for this purpose that the ship should be fitted out, manned, and navigated at his ex- pense, or that he should have the right of appointing the master. The principle of these cases seems to be this ; if the charterer hag such a use and control of the ship, that he may agree with any person to take goods, the freight of which would be due to him, and not to the general owner, the charterer is, under these circumstances, the owner as to acts of barratry. But the cases decided in the United States do not seem to make the character of ownership of the vessel depend upon the same principle. The judges, in giving their opinions, lay great stress upon the circumstance of the vessel's being navigated at the expense of the charterer ; and in some of the cases, this cir- cumstance appears to be considered as essential in order to constitute the charterer owner, in relation to barratry. The principle apparently assumed in the American cases, is, that if the ship is let upon such terms that the captain, as such, and in his general conduct in the navigation of the ship, is to be consi- dered the agent of the charterer, the charterer is, under these circumstances, the owner in relation to barratry. In regard to the English cases upon this subject, it seems dif- ficult to distinguish, in principle, between the hiring of a part of the ship, and the hiring of the whole, for a particular voyage. The control which the charterer is rec|uired by those cases to have of the ship, in order to constitute him owner as to barra- try, seems to be, at most, only the right of giving directions as to the mode of prosecuting the voyage. In some of the cases he does not appear to have this right, nor to have any choice or discretion, as to the kind of goods that may be shipped. (a) Hallet v. Col. Ins. Co. 8 Johns. 209. And a charterer having the absolute control is the person answerable to the shipper of goods, and not the general owner. James v. Jones, 3 Esp. 27, 244 Risks Covered. Chap. XIII. 330. Such a charterer can hardly be distinguished from one of the freighters of goods on board of a general ship. It seems there- fore to be scarcely stepping beyond the principles upon which those cases are decided, to hold that the assured, whether on ship or goods, is himself the only owner to whose interest a fraudu- lent act of the captain must necessarily be prejudicial, in order to render it an act of barratry. Unless this construction is adopted, it seems to be necessary to stop at the principle which runs through the American cases, and to hold that only those fraudulent acts of the captain are barratrous, which are against the interest, and done without the consent of the person whose agent the captain is, and who, upon the general doctrine relat- ing to agent and principal, is responsible for the conduct of the captain in navigating the ship, and who would be bound by the contracts of the captain, as far as his authority, in that capacity, empowers him to bind his principal. It has been thought singular that insurers, who have not the (1) 8 East, appointment or control of the captain, and who often do not «?o'' ^•J^}^'^^- know him, should stipulate to make indemnity for his frauds 213 ; 2 Johns. i- i-^^r i i .i*^- lu- Cas. 188 • ^^^ misconduct to the assured, whose agent he is, and who in 2 Condy's casc of insurance on the ship, may dismiss him when they Marsh. 534. n. please.(l) ' It is Strange,' says Lord Mansfield, ' that barratry (2) 1 T. R. should ever have crept into insurance.'(2) But what is there strange in the merchant's wishing to secure himself against the risk of the dishonesty of the master, for though he secure him- self as well as he possibly can against all the risks of trade, except that of the markets, still there are many left for him to run, and it is natural 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 construc- tion 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 use- ful to comprehend this among the risks commonly 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 ac- tive in availing themselves of the moans they possess to judge of the expediency of subscribing to stipulations, of the practi- cal operation of which they cannot be ignorant. The reasons ui-ged to show the inexpediency of insuring against the barra- try of the captain, apply with very little force to policies on goods where the assured is not owner of the ship, since the cap- tain is often, and probably in the greater number of instances, as well known to the insuroi's as to the assured ; and though he is to some j)urj)osrs the agent of the assured on goods, yet they have no more direct control of his conduct, than the underwriters have. y\ccordingly, some underwriters make a distinction be- tween policies on the ship, and those on the cargo, and insure Sect. 4. Damage arising from the Qualities^ 8rc. 245 against barratry only in the latter, and not in these^ if the as- sured is owner of the ship as well as the goods. Section 3. The Insurers arc not liable for Ordinary Perils or Losses. Whatever risks are assumed by the underwriter, his liability is subject to two limitations ; he is not liable for the conse- quences 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 (i)Barnewall to which every ship must be exposed in the usual course of the J!; ^^^^^h} voyage.'( 1 ) The peril of capture is not subject to degrees, but is always considered to be extraordinary, and in all cases gives the assu- red the right of abandoning and claiming for a total loss. But perils of the seas may be ordinary or extraordinary, and so may their effects ; and unless the degree of a peril and its ef- fect be both extraordinary, the assured has no claim for indem- nity. Although the action of the winds and waves may by de- grees destroy and wear out the hull and rigging, and sails of the ship, yet this is not the kind of loss for which indemnity is sti- pulated. Though the operation of a peril insured against is extraordi- nary, if its consequences are not so, it is not a loss within the policy. Stranding is an extraordinary incident, arising from perils of the seas, yet if its consequences are not so, the assu- red has no claim against the underwriters. In a case of a ship's being strained, and accordingly weakened, and injured in conse- quence of stranding, Mr. Justice Baldwin said, ' Invisible, un- certain, and conjectural damages are never the subject of remu- If-j j?^f ^' neration. I apprehend the injury is not the subject of adjust- ing. Qq^ j ment, unless it be capable of repair in the ordinary course of Connect. Rep. business.'(2) 239. But what is to be considered ordinary, and what is extraor- dinary in the degree and effects of the perils insured against, is a question of much difficulty, and one that cannot be very de- finitely settled. It is sufficient for the present to have stated the doctrine generally j the illustrations of it, and its application to particular cases, will be more fully considered in treating of the different perils insured against, and of losses. Section 4. Damage arising from the Qualities or De- fects of the Subject. From the enumeration already given of the perils usually in- sured against, it appears that the insurers undertake to make in- 246 Bisks Covered. Chap. XII!. demnity only for damage arising from external accidents, not for that occasioned by the qualities or defects of the thing in- sured. 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 provi- sion, it is a general rule that the insurers are not, under the common form of the policy, liable for any damage or loss aris- (1) Poth. n. ing from the qualities or defects of the subject insured since 66. these are not among the perils assumed by the underwriter.(l) 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 con- sumed. The origin of the fire could not be discovered. Lord Ellenborough said, ' If the hemp was put on board in a state liable to eftervesce, and did effervesce and generate the fire ; upon the common principles of insurance law, the assured cannot re- (2) Boyd V. cover for a loss which he himself has occasioned.' But in this Dubois, 3 case, there being no proof that the fire originated from this Camp. 133. cause, the insurers were held to be liablc.(2) The underwriters are not liable for the waste occasioned by ordinary leakage, since it arises from the qualities of the arti- cle. But what is ordinary and what is extraordinary leakage, (3) 2 Val. 83. depends upon the nature of the article, and the length of the h. t. a. 31. voyage. (3) Some insurance companies publish rules on this subject in respect to particular articles, which rules are thereby made a part of the contract between the parties.(a) (fl) The rules of the Petapsco Insurance Company in Baltimore, published in 1014, provide that, ' in cases of partial loss on liquids, ten per cent ordinary leakage shall always be deducted.' But since, on account of the memorandum in its policies, this company is rare- ly liable to a loss of this kind, it is not important what rule fs adopt- ed; and the purpose of the company in adopting this rule is proba- bly only that of having an easy and ready method of adjusting the few losses of this description wliich come within the conditions of the policy. Where tlie parties propose an indemnity for losses on articles of this description upon the principles applicable to losses on goods generally, it is evident that any uniform rule of deducting a certain rate per cent for ordinary leakage, would be liable to ob- jection, on account of its uneipial and irregular operation. The forms of policies at present in use in Boston contain no exception re- lating to liquids, nor is tliere in that place, in respect to such articles, any exception, in practice, to the usual principles of adjusting losses. The practice is to ascertain in each particular case what amoimt of leakage is to be attributed to ordinary causes or the fault of the ass>ired or his agents. In doing this, the season of the year; tlie kind of article ; the description of vessel in which it is contain- ed ; the length of the particular passage ; the situation of the cargo on arrival, in resj)ect to stowage; are all taken into consideration, in some articles brought fi-om warm climates a considerable delici- (!ncy is occa-ione*! by the mere diflerence of temjxrature. In such cases an allowance of a certain per cent is made for shrinkage. The Sect. 5. Events which Enhance the Risk. 247 ) Weskett j-oiison do(\s not show that the insurers ought to be wholly ex- tit. Firc.n. C. fmptcd from liu; loss; it only goes to show, at most, that what would be the net amount of the salvag(> in case of recapture, ought to bc deducted from the amount of a total loss, or else. Sect. 7. Perils of the Sea. 249 that the insurers ought to be answerable only for the amount to which the recaptors would be entitled for recovering the pro- perty, supposing the loss, in such case, to be adjusted as an average. Lord Ellenborough was of the same opinion with Valin on this subject. 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 gr.eatly superior strength, after an unsuc- cessful attempt to escape, was burnt by the captain and crew to prevent her falling into the hands of the enemy. Lord El- lenborough said, ' The case is new, but I am clearly of opinion that the assured is entitled to recover. Fire is expressly men- tioned in the policy as one of the perils against which the under- writers undertake to indemnify the assured ; and if the ship is destroyed by fire, it is of no consequence whether this is occa- sioned by a common accident, or by lightning, or by an act done (i) Gordon v. in duty to the state.'(l) Rimmington, The insurers have in one case been held to be liable for the Lf B™^k ^'^^' loss of a ship burnt by the negligencp of the mate, who was left Koy. Ex. Ass. m charge of her.(2) But this decision seems to be against the Co. 2 B. & a. current of authorities upon this subject. 73 -, Su^r. 228. Section 7. Perils of the Sea. Under perils of the sea, which constitute a part of the risks in almost every marine policy, are comprehended those of the winds, waves, lightning, rocks, shoals, running foul of other ves- sels, and in general all causes of loss and damage to the pro- perty insured, arising from the elements, and inevitable acci- /3n ]y[arsh. dents, other than those of capture and detention.(3) 487. Where a vessel being mistaken for an enemy was fired into Damage hj and sunk, some of the judges of the King's Bench thought this the ship being a peril of the sea, and the other judges, though they thought it ^J^^ ^"^° .^ not a peril of this description, yet were of opinion that the as- take.^ sured were protected against it by the general words of the po- ^^s ^^ji^jj ^^ licy, whereby indemnity is stipulated against all misfortunes and Butler, Park, losses.(4) l^^'} Damage of the ship occasioned by her taking the ground %)^Yietc^^i'v when the tide left the harbour, w^as held to be a loss by perils ingiis, 2 B. & of the sea. (5) A.^3i5. But insurers against these perils were held not to be liable (6) Rowcroft for the damage to a ship which was bilged by being hove out 3' Taunt. 228. to repair, not being strong enough to bear the strain ;(6) nor in case of the shears being knocked away by the tide.(7) If the ship or goods be damaged by collision, or the ship's Damao-e by running foul of another or being run foul of, without any fault running foul. of the master or mariners, the loss is considered to be oc- (7) Thomp- casioned by perils of the sea, and the insurers must make in- ^°" '"• _^^hit- demnity. And so if vessels moored in port, or their cargoes, Taunt. 227. are injured by their beating against each other, during a violent 32 250 Risks Covered. Chap. XIII. (1) Poth. n. 50; Ord. Copenh. a. 14 ; 2 Mag. 337 ; 1 Emer. 411. c. 12. s. 14 ; Duller V. Fisher, 3 Esp. 67. The insurers are liable if the ship is run foul of by the fault of the crew of another ship. (2) Smith V. Scott, 4 Taunt. 126. A missing ship is presumed to have been lost by perils of the seas. (3) Green v. Brown, 2 Str. 1199; Newby V. Read, Park, 106 ; Twem- low t. Oswin, 2 Camp. 85. (4) Gordon f. Bowne, 2 Johns. 150. Damage by rats. (5) Dale v. Hall, 1 W'ils. 281. Storm and without any fault of the master, or mariners, or other persons having charge of the property, it is a loss by the perils of the seas. The ordinances of different countries contain many provisions, and the earlier treatises abound in elaborate disqui- sitions upon this subject, which it would be useless to rcpeat.(l) In case of injury from this cause, the only objection to be made to the payment of the loss, is, its being occasioned by the fault of the master or crew of the ship insured, or on board of which the goods insured are shipped, for if it happen, through the negligence of the master or crew of another vessel, the in- surers are held to be liable. This was decided in England, in an action upon a policy on the ship Helena from Honduras to London, which was run foul of at sea by the Margaret, through the grossest neglect of the master and crew of this lat- ter vessel, of whom only one man was on deck, and he was asleep. The insurers objected to paying the loss on this account. Chief Justice Mansfield said, ' I do not know how to make this out not to be a peril of the sea. What drove the Margaret against the Helena ? The sea. What was the cause that the crew of the Margaret did not prevent her from running against the other? their gross and culpable negligence — but still the sea did the mischief,'(2) If a vessel at sea is not heard from for a long time, she is presumed to have perished by perils of the seas.(3) By some policies it is provided that if the vessel is not heard from for a certain time, she 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 evident- ly be greater or less, according to the length of the voyage, and other circumstances. (4) In regard to damage by rats and vermin, it seems to be im- plied by the expressions of judges in some instances, that it does not arise from the kind of perils insured against. But the opi- nions respecting the liability of the insurers for this species of loss, arc most frequently put upon the ground that it is not an extraordinary loss, and also, that it happens through the fault of the assured. A case was decided in the time of Chief Justice Lee, respect- ing a claim of damages for the injury done to goods by rats. The goods Avcrc 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 of the goods arising from every other cause.(5) But as the master of a vessel for a voyage at sea, is not, within the meaning of this case, a common carrier, the principle upon which the decision was made is not applicable to marine insurance. According to the old hooks and sea-laws, 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. 'J'his supposes that the loss may be inevitable, and Sect. 7. Perils of the Sea. 25 1 that it is not in all cases owing to the negligence of the master and crew. Emerigon(l) considers the insurers not to be answerable, in (i)c. 12. s.4. general, tor 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 cfl'cct they cite the rule of . . n ia * the Civil Law, that if cloths entrusted to a fuller are injured by 13. e.' mice, while in his possession, he must make good the damage. (2) (3) de assec. Straccha(3) considers the insurers not to be liable for damage by ^^'^- ^^art4. rats or mice, on the ground that it might be prevented by pro- °* ' per 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. Francois, 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 (4^ Garrigue» among those casualties comprehended under perils of the seas, v- Coxe, 1 and for which the insurers are liable.(4) ^^^- 5^2. A similar case came before Lord Ellenborough. 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 incapable of proceeding upon the voj^age, and the cargo was sold at An- tigua. Lord Ellenborough held that this did not constitute a /p^\ hunter r. loss, for which the underwriters on the goods against perils of Potts, 4 the seas were liable.(5) Camp. 203. It has been held that the destruction of the vessel's bottom by Damage of worms is not a peril of the sea. A case came before Lord *^^ ^'^'P ^7 Kenyon relating to a vessel so destroyed on the coast of Africa. '^°''™^" A special jury were of opinion ' that this was not a loss within ^?J^.^ , j.^* the term of perils of the sea, in policies of insurance; and 444.' Lord Kenyon was of this opinion. '(6) Mr. Justice Livingston, (7) Depeys- alluding to this case, said, ' I do not mean to be understood as \^'^ ^iS^l' subscribing to the opinion of Lord Kenyon.'(7') But his opinion CainesCS. has been adopted in Massachusetts. A ship's bottom ■was in- jured by worms during the time of her detention by an embar- go at Cape St. Fran9ois. In respect to a claim of indemnity from the insurers for this damage, the court, speaking of the case of Rohl v. Parr, said, ' it was decided upon the ground that the loss was like the wearing and naturaldecay of the vessel. '(a) 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^i warm climates, and (a) Martin v. Salem Ins. Co. 2 Mass. Rep. 429. In a common printed form of policy used in Charleston, S. C. it is provided that the insurers shall not be answerable for this species of damage. 252 Bisks Covered. Chap. XIII. 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 be 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 da- mage, upon the principle which makes them liable for loss by theft after a shipwreck, though they are not, under ordinary circumstances, answerable for such a loss. In regard to perils of the sea, there rarely occurs any doubt whether any particular risk does or does not come under this description. The question relating to the kind of peril is in most instances easily determined ; but it is frequently difficult to distinguish 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 perils of the sea include more especially the danger from the winds and weaves ; yet the underwriters are not understood to promise indemnity for the ordinary injury and gradual wear- ing out of the sails and rigging, by the constant action of the elements. Injuries and waste of this sort must be repaired at the expense of the owner, who is at the risk of the loss and di- minution in value, occasioned by use and natural decay. Delay at a The expense and loss .attending a mere detention and delay, port in the ^^ account of perils of the seas, ai a ])ort in the course of the coiirsfi OI ll'lG ^ voyage, on ac- "^^J^gG? must be borne by the owner of the ship, though the count of perils delay Continues for a long time. On a voyage from a port in the of the seas. Baltic to London the ship was unexpectedly detained by the ice, and instead ot proceeding on the voyage immediately, could (1) Everthr. not sail until the following season. This was considered to be Smith, 2 M. o^c of thosc ordinary inconveniences and interruptions of the ■~ ' voyage, the exj:)ense of which must be borne by the OAvncr.(l) The expense But if the vessel go out of the course of the voyage for the of going outof purpose of refitting and rcpoiriiigdamage sustained from thcperils the voyage to iisurcd against, it is universally held that this is to be done at refit is borne the charge of the insurers. But though the delay and dcpar- by the insu- ture from the course are considered to be extraordinary occur- ^^"' rcnces, for which the insurer is bound to make indemnity, a dis- tinction 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 extraordinary, and for which the insurer is answerable. The owner loses the earnings of the vessel during the time of her detention, but it is universally agreed that he has no claim against the insurer on this account. The rule as lo In regard to the cii^ense,on account of the wages and provi- cxi.ensr- of sions of tlic cr(^w, during ihe period of voluntary iieparture from wages and ,j^^ coursc, and d( lay, for the purpose of refittin'r, the rule prac- provifli**n8 111 • • ' juch caifc. ^'scd upon in the United States, and sanctioned by all the Arae- Sect. 7. Perils of the Sea. 253 rican courts, is different from that adopted in Great Britain. In is different la one case,(l) in which the ship put into Nice in distress, where England and the captain discharged the crew and then hired them to assist ^Jje L/mted in repairing the ship, the court in England considered their wages, while so employed, as constituting a part of the loss with- [P^^ Cosi*. in the policy, upon the ground that ' they did not work as sail- 2'T. R. 407.* ors, but as common workmen.' But the expense of wages and (2) Stevens, provisions of the crew, as such, during a delay to repair, is very ^- ^; ^- ^- '• distinctly and explicitly considered in practice,(2) and held by nJr't;. wud- the courts in England, to be a charge upon the owner, and not man, 3 M. & a part of the loss within the policy, either upon the ship or S- 482. freight. It seems that formerly some insurers in England were of a (3) Beawes, different opinion,(3) and on the continent of Europe these slc.v^i^v^^' charges appear to be more generally considered a parx of the 157. 1 Mag. loss v/ithin the policy, in case of a vessel's putting into a port to 67. s. 57. relit; 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 inte- rest of the money, and the damage caused to the cargo by (4) 1 Ma?. 68. the delay ?'(4) The French Code makes the insurers liable (5) Cod."de for this charge only in case of the vessel's being chartered by 9'°™' ^' ^' *• the month.(5) In the United States the rule is general and uniform, that the In the United underwriters are in this case liable for the expense of wages States the and provisions.(6) One reason of the rule seems to be the ex- ■^^sf^^^^fl ^,. . ^ ' -. i-ii- •• 1 provisions are traordmary circumstances under which this expense is incurred, in such case which may be supposed to change the nature and character of held to be a these expenses, and to render the insurers liable for them upon P^rtof the the same principles on which they are liable for any loss. If the loss is paid upon this ground it shows that the construction ^^ ^tlo?'© put upon these expenses, as being ordinary and like the wear joiins. 307 • and tear and decay of the vessel, or otherwise, is different in 2Caines, 263; England and the United States. But supposing these expenses 2 Games, 274. not to be considered in the United States of the kind for which insurers are liable, according 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 Avell as the assured, to remove, as much as possible, every discourage- ment to the use of precautions and all practicable means for the safe prosecution of the voyage, and insurers may upon this ground 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 de- pends 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 254 Risks Covered. Chap. XI 1 1. (1) Cod. de similar in the Marine Law of France.(l) The liability of the Com. ut supr. insurers for this expense will be considered subsequently. What damage In regard to damage to the ship, Magens says,(2) ' Were in- to the ship surers obliged to pay for every cable and rope that breaks, or loss withfn the ^^"^ every sail that splits, or blows to pieces, there would be no policy. other way of insuring ships, but free of all particular average.' (2)c. l.p. 52. Where a vessel is wrecked; or damaged by stranding; or s. 51. 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 under- writers. So if to escape from some imminent peril that is in- sured 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 sacrifice being extraordinary, constitute a valid claim for indemnity. But if a cable is worn oft' while the vessel lies at the usual anchoring place, and without any extraordinary action of the perils insured against, or if a sail is split in the or- dinary course of navigation, it is the owner's loss. It is difiicult to give examples by way of illustrating the dis- tinction of what is ordinary from what is extraordinary, in losses and damage 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. It ought how- ever to be considered that insurers, from a disposition to con- strue the policy liberally in favour of the assured, frequently pay losses for which they do not suppose themselves to be liable in law. Actual adjustments of losses should therefore be in- stanced with some allowance in favour of the underwriters ; a liberal proceeding on their part ought not to be converted into a strict rule against them. Damage of the J^ some instances, as where the timbers of the ship are broken, ^hi'f °^^^^ ^^^^ damage done is a sufficient proof of the extraordinary de- gree of the operation of the peril. It can in general be pretty satisfactorily determined whether an injury to the body of the ship is a proper subject of indemnity ; the question of most fre- quent occurrence in regard to such damage being, whether the extent of the injury does not rather prove the ship to have been unseav.orlhy, than that the peril was extraordinary. But if it be assumed that the ship was seaworthy, it is in general not dif- ficult to determine whether an injury of this kind is a loss within the policy. Damage of the Jt js sometimes a subject of doubt whether the damage of (he eheaihing. sheathing is to be repaired at the expense of the insurers. The sheathing will necessarily be destro^^ctl and worn oft* by use, and damage of this sort ought to be considered ordinarj^, and fill upon the owner, except in cases of the vessel's striking, or where some other injury, sustained by the vessel at the same lime, shows that she was exposed to great violence. Injuries of this sort, v.'hich are to be considered only the wear and tenr of ihr ship, are distinguished from those which constitute a loss within the policy, by taking into consideration the age and Sect. 7. Perils of the Sea. 255 strength of the sheathing, and all other circumstances, which show to how great a degree of violence the vessel has been ex- posed. The damage to the upper-works of the vessel is frequently Damage to the subject of particular average, and would be more frequently theupper- 80, did not the amount of this species of damage often come ^°p *° 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 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 exception of losses under three or five per cent. The same rule applies to the masts and spars. If a mast is Damage of sprung, or if spars are carried away or broken, the fact of their "^^^t^an^ being so, is usually considered a sufficient proof of a degree of violence against which the insurers undertake to make indem- nity. The boat is considered, to the purposes of insurance, to be a i.oss and da- part of the ship.(l) If a boat be washed overboard, it is con- mage of boats. sidered to be a species of loss that is insured against, unless the (l) Stevens, accident happen through the fault of the captain and crew. P. I.e. 3. a. 4. 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 (2) P. I. c. 3. quarters.'(2) But Avhether a boat may be properly lashed in this a. 5, 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 neces- sary to carry the boats on the outside of the ship, and no ob- jection is made to paying for a boat, which is lost on a voyage of this description, on account of its being carried in this situa- tion. 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 ves- sels 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 C"^) Stevens, insurers, that the loss cannot be claimed under the policy,(3) " ^^^^' 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, from a disposition to put a liberal construction upon their contract, in favour 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 let down 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 carri- ed, by vessels navigating the Mediterranean, was formerly paid for without objection, because the carrying the boat in this 256 Risks Covered. Chap. XIII. (4) 1 Emer. 624. c. 12. 8. 41. Loss on sails, rigging, ca- bles and an- chors, is not easily distin- guished from wear and tear. Loss of cables and anchors. (1) 2Val. 81. h. t. a. 29. situation often facilitated the escape of the crew in case of the capture of the vessel by corsairs. (4) 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 arc necessarily cut away in order to save the masts or yards, and for the gene- ral safety, or a cable is cut or slipped for the purpose of escap- ing from an impending peril, which is insured against, or a hau- ser 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 volun- tary sacrifice of it, gives a valid claim against the insurers, for compensation 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 sea, for this will happen from use and decay in the most favourable weather, and under the most fortunate circumstances. Damage and 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 the 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 an 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, that was insured against capture and perils of the sea, being captured on suspicion of having enemies goods on board, and carried into Plymouth, was anchored by the prize master in the outer harbour on a foul bottom, but where ves- 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 insu- rers; though it possibly niigiil not have been, if the vessel had gone to Plymouth in the regular course of the voynge,(l) 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 cai)lc of a vessel was cut off, during a violent gale, by b(>irig brougjit across (lie iron cable of another ship, the loss was paid without any (jucstion hy (he underwriters. It was a j)<)siiiv(! spocific loss in consequence of an unusual and cxtraor- diri'iry degree of peril. Sect. 8. Piracy, Robbery, Theft. 257 In distinguishing the wear and tear of the ship from the da- Case lage which constitutes a loss, the cases of a vessel's losing an ^i^'P'* of a mage which constitutes a loss, the cases of a vessers losmg an ^'^'P'* |^^'»f anchor by being compelled by the perils insured against to come ^"'"jl^r ^^ ^^ to anchor in an unusual place, or to carry a press of sail to unusual place, escape an enemj^, or to keep off from a lee-shorc, have been very or to carry a much discussed, and are said to have been the subjects of ela- f"^^ °LT^^ *° 1 . ' . . .•' J, keep off from borate treatises in bermany. iViagens mentions the case oi a ^ lee-shore. ship that was compelled to anchor in a rocky place by Heligo- land, where several of her cables jiarted. Ihis 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,'(l) which implies a doubt whether (l) v. i. p. this was a loss within the policy. ^"^- ^- ^^• The same writer says, ^ AVe remember at London, where ships, endeavouring 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 (?) '^^ ^- P- stranding.'(2) In the United States these two descriptions of loss are m^ost generally, if not invariably, considered as coming within the stipulation of indemnity. It does not appear that these losses are, at present, distinctly considered in England, as coming Ip-'j ^'*^^^'^''q within the policy.(3) o'n. R. 378.' No specific rule can be laid down in regard to ropes parted, and sails split or blown away. If it appear from the circum- stances that the damage was caused by any extraordinary vio- lence, the effects of which could not have been guarded against by taking in sail seasonabl}^, and that the damage was not oc- casioned in any degree by the fault of the captain and crew, it is a loss Avithin 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. 8. Piracy, Robbery, Theft. The peril from pirates is one of those expressly enumerated Piracy is a pa- in the general form of the policy. It seems, however, from old " ° the seas. authorities, that this risk would be covered under perils of the seas, though it were not expressly insured against in the policy under the description of j)iracy. It has been determined that in the case of charterpartics, by which it is stipulated to con- (4) i Roll vey and deliver goods, the perils of the seas excepted, that it ^^r. 248.pl. is a loss by the perils of the seas under this exception, where .q ] y'°'^"' the vessel is robbed or taken by pirates.(4) 103. ' 33 258 Risks Covered. Chap. XIU. Loss by a Under this clause Lord Kenyon thought the assured would mob. 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 harbour, in Ireland, and took the government of her from the captain and crew, and ran her upon a reef of rocks, where- (1) Nesbitt f. by the cargo ^vas damaged ; had the insurers not been exempt- Lushington, ed from the loss under the memorandum against partial losses ^ ?"• ^- '^^^- on that article. He said, ' If a partial loss could have been re- Smith °rDow covered upon this policy, the assured might have recovered for a 349. loss by pirates.'(l) Loss by rau- Under the risk of pirates and rovers, or under perils of the tiny- seas, the insurers are liable for losses by a mutiny of the crew. (2) Loss by rob- Besides the risks from pirates, the policy usually provides for ^^'^7- indemnity against those of rovers and thieves, but in some poli- cies the description of this peril is different, and the insurers agree to indemnify against loss by assailing thieves. By insu- rance against these risks, and that of piracy, the assured is pro- tected against all robbery and plunder, committed with violence and superior force, whether by sea or land, while the goods are at risk within the conditions of the policy. Losses by There is, however, a distinction between plunder committed t^ef). ■\vith superior force, and simple larceny without violence. In most cases the insurers are not answerable for losses of this lat- ter description, because such losses might be prevented by pro- per vigilance. It is probably for the purpose of adapting the policy to this distinction, that some underwriters have intro- duced the words assailing thieves, instead of thieves and rovers. But these latter words do not, in general, cover losses by theft, (3) Harford v. except those which are accompanied by violence, or where the Park"^V theft is committed under circumstances in which it could not See also 1 be prevented.(3) Emer. 534. Weskett(4) thinks that the insurers are not answerable for R ^'" ^"42.' ' thefts committed during the night by land robbers, who come 1 Mag. 70. s. 01^ board while the vessel is in port.' He is speaking of a case 63. of theft without violence. (4) tit. Theft. Pothier(5) says the insurers arc liable for loss by plunder on (6) c 12 a shore, after the shipwreck of the vessel. The reason given by 29. Emcrigon(6) is, that it would be a case of total loss, by which the yjropcrty 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 con-* struction 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 cither for a total or partial loss. A sufficient reason seems to be, that, by the operation of one of the perils insured against, the property is piit into a situa- tion in which it is not in the power of the captain and crew to drfrnd it. The c;ise is not distinguished in principle from one of piracy or rob])cry. That the underwriters are liable for theft and plunder conse- quent upon shipwreck, has been decided in the case of a policy on goods from London to the Isle of France, in which some of Sect. 9. Capture and Detention. 259 the goods were saved, after shipwreck, and got on shore at the ... „ , Isle of France, where they fell into the hands of the natives, t,. Hentieg i who destroyed a part and plundered the remainder.(l) Holt, 149. Section 9. Capture and Detention. In policies of the common form the property or interest is in- sured against ' takings atsea, arrests, restraints, and detainments, 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 What consti- taking possession of property with the purpose of appropriating t"tes a cap- it to the captor's own use, by which it is distinguished from a ^"""^ °^ *^'*' mere detention, with the design of ultimately liberating the pro- perty, as in the case of an embargo.(2) A seizure is equiva- (2) ^ Emer. lent to a capture, as it is made with the intention of depriving so^Poth h*' the owner of his property in the subject.(3) t. No. 56. The policy extends to captures, arrests, and detentions by note by Es- public enemies ; by belligerents, where the property insured is /^il"f',"j , neutral ;(4) or by the government of which the assured is a 237. subjeci.(5) The insurers were liable for the loss of a vessel (4) Rhine- taken by government for a fire-ship,(6) or the capture of neutral Zander f. Ins. property by those acting under a commission from the govern- 4Cranch"2^ ment of which the insurers are subjects, in case the risk of the (5) Nantes v. capture can be legally insured against.(7) Thompson, 2 This clause of the policy is more generally understood to ap- E^x^ q^^^' ply to captures, seizures, and detention by the commissioned of- Youne; 2 ficers and agents of some lawful and acknowledged government. Salk. 444-, 2 Accordingly Mr. Justice Buller said, the word people in this Ld.Raymond, clause ' means the supreme power ; the power of the country, ^^^ Anthony whatever it may be.'(8) Thus the court considered the loss of v. Moline, 5 a cargo of corn by a mob at Elly Harbour, as coming under the Taunt. 711 ; clause relating to piracy. But the words of the clause respect- --chnakoneg ing capture and detention seem to be broad enough to compre- Taunt. 716'; hend perils of this description arising from pirates, or any per- Eazett v. sons who may capture or seize the property without any com- Meyer, 5 mission or authority for this purpose from any supreme power, (jA^Njgbj'tt't?. which is established and recognised as such. Lushington, 4 If war is declared after the policy is made, and the risk of T. R. 783. capture thereby increased, the assured is still protected against this peril, since the risk of a declaration of war is one of those assumed by the insurers ; who on the other hand are entitled to retain the whole premium for a war risk though peace is made, and the perils thereby diminished before the risk expires. In regard to what constitutes a capture or seizure there is no room to doubt ; the uncertainty, if any, being in relation to the facts proved, and not to those necessary to make a capture. But it is otherwise in regard to arrests, restraints and deten- What consti- tions, for in many cases where there was no dispute respecting tutes an arrest the facts, there was still a doubt whether those facts constituted meaning of a detention, arrest or restraint, within the policy. If the vessel the policy. $60 Risks Covered. Chap. XIII. is detained bj 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 meaning of the policy ;(a) and so if the vessel be stopped for search, and sent in for ex- (1)1 Mag. 67. amination.(l) In such cases there can be no doubt the vessel is arrested and detained, though the question may still arise Avhether any loss is occasioned, or wdiether it be a loss for which the insurers are answerable. Whether the But where intelligence is received on the voyage that the ■blockade of port of destination is blockaded, or the captain is warned the port of j^j^^ j[-jg voyage is interdicted, and he will be exposed to capture or a'proiilbi- ^J proceeding on his course, the question has arisen and been tion of entry is elaborately discussed in many cases, whether this is an arrest an arrest, re- q^ detention. Must the captain proceed for his port of destina- teTt^n °wfth- '^^°"' nof-withstanding such warning, and take the hazard of cap- in the policy, ture ? or must he turn off to some neighbouring 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 ? That it is the duty of the captain in such case not to proceed and ex- pose his vessel and cargo to certain or very probable capture, is obvious, since it appears from the general principle, already laid /0-) Schmidt dov/n, that the insurers are not liable for any losses occasioned r. Unit. Ins. by the misconduct of the assured or his agents, or against which Co. 1 .Tohns. tj^e precautions suggested by a just and ordinary prudence, are llchardson - ""^^ taken. Accordingly it has been held that if the captain Maine Ins. * disregard the danger of which he has sufficient notice, and pro- Co. 6 Mass. cecds on the voyage in such case, whatever loss happens, it will nTp V^" ' ^^ through his fault, and the assured cannot recover for it, un- \Vood" 3^°^^'" less the captain's misconduct amounts to barratry. (2) Mass. Hep. The effect therefore is to prevent the vessel, at least, from 486; Scott v. pursuing her course. This is an incvitalile accident which dis- Yt^^'^'ic charges the owners from their obligation, under the charter- Jonns. Job. ^ , -t^ n ^ ■>• i i c ^ (4) The Sara- party or bill of lading, to transport the cargo to the port ot des- toga, 2 Gal. tinat'ion.(3) and dissolves the contract wath the mariners for ^^4- wagcs.(4) Of the maxim The inioiTuption of the voyage by blockade, interdiction at ^ ers a're 110^" the port of dcstinaiion, or the imminent peril of capture, has liable for been said, in some cases, not to be a loss within the })olicy, be- losses occa- cause the insurers are not lial)le for a loss incurred through /cor •ioned by the ^r ^^ .^-z ^^ -^^ timet. It is not easy to say what is the pre- f tar of a ptTil. •'. '. r i • • ,• / r •; Ti ■' ■' ' rise import of ihis maxim respecting/cflr 0/ a /;fri/. 1 he com- mon form of the policy providers that, ' in case of any loss or misfortune it shall be lawful for the assured to sue, labour, and travel, in and about the defence, safeguard and recovery of the property, to the charges whereof the insurers will contribute.' (a) Bcawes, 268, tit. Embarji^o, &c. ; Grot, de jure bel. 1. 2. c. 2. s. 1 ; 1 Hhick. Com. 270; BlackcnhajTon v. Lond. As?. Co. 1 Camp. 454; Hotrh V. Edio, G T. II. 4i;}; Olivcrar. Un. Ins. Co. 3 Wheat. 103; Odiin V. Ins. Co. of I'enn. Condy's Marsh. 508. n. ; Wharton's Dig. p. 335. No. 170. Sect. 9. Capture and Detention. 261 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 rei'crence to something fu- ture — the assured sues and labours to prevent the property from being plundered in one case or condemned in the other — he has reference to something which he /cars may take place. The insurers arc liable for what is paid to captors by way of compromise ; here the peril has actually overtaken the proper- ty ; it has been captured ; but in oflering a compromise, the as- sured is determined by the prospect of the condemnation of the property, or of the expense of obtaining its release. What has actually happened, namely the capture, seems to be of no im- portance 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 otherwise be inevitable, seems to stand very much upon the same ground with a compromise to prevent the consequences of a capture already made. Whether the fear is, that the peril will hcgin^ or having begun, will continue, to operate on the pro- perty ; the interest of the parties seem equally to require the assured to act upon such fcar^ where it is well grounded. In- surers were held liable for the loss of specie thrown overboard /ix t, ., . at the time the ship was captured, to prevent its iailing into the wiidman, 3 hands of the enemy.(l) Yet it was thrown over for fear it B. & A. 398. would come into his hands ; and though this was done at the ^) Gordon v. time of the capture, this only proves that the peril was so im- | camp? 123 ; pending, as to justify the assured in acting with reference to it. Poth. h. t. n. The insurers are held liable for the loss of a vessel voluntarily ^3. and Es- burnt to prevent her falling into the hands of the enemy.(2) Ya"in"h"t!^^ This Avas held by Lord Ellenborough to be a loss by firt^ but a. 26.' 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 ope- rate ; yet if the^peril be insured against, the insurers are liable for these losses. There appears to be reason, therefore, to infer, that the insu- rers are liable for a loss that may fairly be considered to be ex- clusively and solely occasioned by a peril insured against, whether the loss prevents, or is concurrent with, or folloAvs, the actual happening of the peril. It accordingly seems to be diffi- cult to attach any precise meaning to the maxim, that insurers are not liable for loss by fear of a peril. If the assured incur losses, and make extraordinary sacrifices, when the peril is so remote and improbable that an ordinary and reasonable pru- dence does not require or justify his steps, the loss might be considered as occasioned by his/ars, that is, through his fault, and not by the perils insured against. And so if the assured 262 ' Risks Covered. Chap. XIII. do no more in avoiding a peril than is considered his customary and ordinary duly in navigating the ship, the insurers are not liable, for there is in fact no loss. But the maxim of fear of peril, seems not to have either of these constructions, as will ap- pear from the manner and connection in which it is introduced and applied in some of the subsequent cases on the subject of arrests and restraints. The question, whether interdiction of trade at the port of destination, interception of the voyage by blockade, or immi- nent danger of capture or seizure, amount to an arrest, restraint, and detention, for which the insurers are liable, has occurred in different cases in England, and has been very elaborately con- sidered in the courts of the United States. In most of these cases the maxim quia timet has been introduced. Entry at the An insurance, against total loss only, was made upon a cargo port of desti- Qf pilchards, from Cornwall to Naples, on board of the English brted" ^^° ^' ^^^'P P^iscaro. Intelligence was received on the voyage that English vessels were excluded from all ports belonging to the king of Naples, and the captain, by order of the commander of the convoy, in company with which he sailed, made port Mahon, in Minorca, where, after obtaining a survey of his cargo, under an order of the admiralty, he caused it to be sold ; it being of a perishable nature. The underwriters being liable only for a total loss ; if the necessity of selling the cargo, and breaking up the voyage, was owing to the perishable nature of the arti- cle, the insurers were not liable. This objection is blended in the opinion given by the court, which seems however to turn on the consideration that the peril is not covered. Alvanlay, C. J. giving the opinion of the court, said, ' That where the under- writers have insured against capture and restraint of princes, and the captain, learning that if he enter the port of his desti- nation the vessel will be lost by confiscation, avoids that port, whereby the object of the voyage is defeated, such circumstances do not amount to a peril operating to the total destruction of the thing insured.' To give the assured a right to recover, ' the loss must be occasioned by a peril insured against acting upon the subject insured immediatcl}^, and not circuitouslj^, as in the present case. Without entering into the question, how far what has happened can be considered a total destruction of the thing insured, 1 think that the detention of the cargo on board of the shij) at a neutral port, in consecjucnce of the danger of entering ri") Ilndkin- ^^^^ port of destination, cannot create a total loss within the f'on r. Ro})iii- meaning of the policy, because it did not arise from a peril insured »on, 3 !;. ScV. (iffainsl.'{\) 'J'liat is to say, it is not an arrest, restraint, or de- ^''^^' tention, within the meaning of the policy. Thf- port of In a case of the voyage being given up on account of the port destination of destination having fallen into the hands of the enemy, after in possession ^j^^, sajlintr of the vessel, Lord Kllenlioroutrh said, ' The aban- of the- ineniy. , '^ .. \ • r ■> , i It donment was (roni an ajtprcncnsion ol an enemy s capture, and r. RowcroTt "''•^ {ron\ any loss within the terms of the policy.'(2) 5E»p.bO. In an action upon a policy on goods 'from Brislol (o Monte Video and any other jiort or ports in the river Plata, in posses- Sect. 9. Capture and Detention, 263 sion of the English,' it appeared that when the vessel arrived in the river Plata, Monte Video, and every other port in that river, except Maldonado, were in possession of the Spaniards, who were at that time public enemies ; and on the vessel's coming to Maldonado, the English commander there ordered her away, on account of the urgency of public affairs which did not admit of any delay ; whereupon the vessel bore away for Rio Janeiro, being the nearest friendly port of safety, and a loss occurred be- fore her arrival there. Lord Ellenborough and the other judges were of opinion ' that the policy could not be extended to cover the voyage to Rio Janeiro, notwithstanding the circumstances which had occurred to induce the necessity of it ;' and were so 0) Parkin v. decided in this opinion that they would not permit the question -^^^^ 22. S. C. to be brought up for argument.(l) 2 Camp. 59. Another case involving this question came before the same An embargo court. It was that of a policy on goods on board of the Wolga, at the port of a British vessel, from Hull to St. Petersburg, ' to return two per '^J^^'"^Jg°"he ' cent of the premium for convoy in the Baltic, and arrival.' By g^ip from pro- orders from the public ships, the vessel waited some time at ceeding. Helsingberg Roads, for convoy. After proceeding thence with convoy, the commander of the convoy informed the captain of the Wolga, that an embargo was laid on all British ships in the Russian ports, and ordered him not to proceed, but to wait for orders from the commander in chief, in Copenhagen Roads, as to his future destination. The captain of the Wolga was then ordered to proceed to Helsingberg Roads, and afterwards he thought it best, under all the circumstances, to return to England. The counsel for the assured, put the claim for a loss on the de- tention by the public ships, but for which, it was said, the ves- sel might have arrived in Russia before the embargo was laid. The other ground of the exclusion from the port of destination was not insisted upon, for the reason probably that the point was supposed to be settled by the above cases. Lord Ellen- borough said, ' This is no more than a detention by the convoy for a certain period, till by the laying of a hostile embargo in the destined port, the further prosecution of the adventure ,^s Forsterv. became impracticable, and the voyage was lost, which accord- Christie, n ing to Hadkinson v. Robinson, is not a loss within the policy.'(2) East, 205. In case of insurance upon goods, from London to Revel, the vessel sailed on the voyage, but the master, on receiving intelli- gence that an embargo was laid on British vessels in Russia, put back, and the vessel was lost while on the course in return- ing to England. Lord Ellenborough said, ' This case will hardly bear to be stated. The underwriters were bound to indemnify the assured for any loss that should happen on the voyage to Revel. If, being unable to get to Revel, the ship had lingered in that quarter, or had necessarily returned with the intention of ultimately completing the original voyage, a question of some nicety might have arisen. But by sailing back to England in the manner she did, the original voyage was abandoned, and the underwriters were discharged. Had the ship been coming home as the best means of getting finally to Revel, and there 264 Risks Covered. Chap. XIII. (1) Blacken- had becn a possibility of her being able to accomplish that ob- hagenr.Lond. jg^.,.^ when the loss happened, she might still have been consi- Camp. 454. dered in the course of the voyage insured.'(l) The assured being nonsuited in the preceding action, brought another in the Common Pleas, where Sir J. Mansfield was of the same opinion with Lord Ellenborough, but the jury, contrary to the opinion of the judge, found a verdict for the assured, (2) lb. 456. n. which the court set aside. (2) Decisions in '^^^^ same question came before the court in Massachusetts in Massachusetts 1809, upon a policy for a voyage from Salem to Malaga, on the 1° '■'^^P^^t *o ^ cargo of the barque Active, which Avas boarded, during the thrpo^rt of ^ voyage, on the third of January, 1808, by a Biitish privateer, destination. ^^^^ Warned not to proceed to Malaga, nor any other port what- ever excepting in Great Britain, Gibraltar, or Malta ; and the master of the barque was advised to return to Salem, as the best thing he could do. The warning was endorsed on the register and sea-letter of the Active, and a copy of the British orders in council, in pursuance of which the warning had been given, was left with the master, who had no knowledge of those or- ders before that time. The master, after consulting with the crew, discontinued his voyage, and proceeded back on his course for Salem, and while so proceeding was captured as prize by another British privateer, and ordered for Nevis, but before arriving there rescued his vessel from the prize crew, and again steered for Salem, at which port he finally arrived. Chief (3) Richard- Justice Parsons gave the opinion of the court. He said, 'It is son f. Maine made a question whether a well grounded fear that a total loss Ins. Co. 6 ^^[\\ Qi-ise from one of the perils insured against, if the voyage 102. See Mr. ^^ pursued, is itself a peril within the policy ; and on the best Justice Brack- consideration we can give this question, we are satisfied that this enndge'sre- y^Q,. qJ" ^ [ogg t^^s Stated, is Hot a peril within the policy. To this case'°5 ^^^mit it to be a peril insured against would be productive of Biu. 421 ! much uncertainty and open a door to frauds on the insurer.'(3) In case of an insurance upon a vessel and cargo for a voyage from Salem to St. Andcro in Sj)ain, the vessel, while pursuing the voyage, was boarded by a British armed ship, the command- ing officer of which endorsed upon her register a notice similar to that mentioned in the preceding case. The vessel proceeded to Gibraltar. Chief Justice Parsons, giving the opinion of the court, said, ' Had the master after the warning l)y the British ship proceeded on his voyage to St. Andero, his vessel and car- go Avould probably have been captured and condemned, on the ground of the cargo being contraband. We are satisfied that the voyage was lost through a just and reasonable fear of cap- (4) Cook f. turc for having a contraband cargo on board; that the under- iT'\^ ''■ ^ ^ wi-it( rs did not insure against a cai)ture for this cause ; — and that M. Ins. Co. 6 rill- i r /• i ii Mass. llcp. '' ""'y ''^'J ^^ insured, a loar ol capture, however reasonable, 122. is not a peril insured against. '('!) The court, said in this and (5) See also ^f^^. preceding case, that the carco became contraband, by the Gray c, Mass '"''^^tcr s proceeding towards a blockaded ]-)ort alter notice.(5) Rtp. '124. In case of insurance of a cargo of fish for a voyage from Boston to Leghorn, in the course of the voyage the master of Sect. 9. Captnre and Detention. 265 the vessel received intelligence at Gibraltar, of the British or- ders in council above-mentioned, which rendered his ship and cargo liable to capture if he proceeded towards Leghorn ; and of the Milan decree of the French emperor, by which his vessel and cargo would have been subject to seizure and con- fiscation at Leghorn, on account of his having stopped at an English port. The captain, after some delay at Gibraltar in ex- pectation that the orders and decrees might be recalled, con- cluded to abandon the voyage. Accordingly before leaving ^^ Amory v. Gibraltar he sold his cargo, which was in a heating state, and Jones, 6 Mass. would soon have perished if it had been kept on board. Chief ^^P' ^^^; Justice Parsons, giving the opinion of the court, said, 'The mas- Gray T Mass. ter abandoned the voyage from a well-grounded fear of cap- Rep. 349-, ture. It is our opinion that this is not a loss by any peril for Tucker v. which the insurers are answerable.'(l) t V io ' . . ., ••11 • I I 1 • 1 l"s. Co. 12 A similar opinion has been given by the same court in sub- jyij^gg^ j^ep. sequent ca5es.(2) 288. The same court has extended the principle of the preceding Case of a ship cases to that of a vessel prevented from leaving port by the prevented danger of capture. In case of insurance upon the ship Laura J^rTbythe"^ at and from a port or ports in the River Plate to Boston, the danger of cap- ship was at Buenos Ayres in 1812, when intelligence was re- ture. ceived there of the breaking out of the war between Great Britain and the United States. At the same time a British fri- gate and gun brig were lying in the river below Buenos Ayres, the officers of which had made known to the master of the Laura that they should capture his vessel if he attempted to go to sea, in attempting which he must have passed very near them, and would have been exposed to certain capture. The Laura accordingly remained at Buenos Ayres. and the assured aban- doned, and claimed for a total loss by restraint. The court said, 'There was no application of hostile force, to prevent the sailing of the ship, and although her sailing would have been attended with imminent risk, yet if that risk would authorize an abandonment, the fear of capture would become a peril insured against, contrary to the decision of Richardson v. The Maine (-p Brewer v. F. & M. Ins. Co. This is certainly a strong case, but we can- 12'Mass.Rep. not make new and nice distinctions. '(3) 170. This subject was elaborately investigated in New York, in an Decisions in action on a policy on goods ' from New York to Hamburg on Nt w York board the Orozimbo.' On the voya2;e insured the ship was °^}Y ^^""^ ^ ■1 1 1 • 1 T-i 1^ 1 ^1 1 1 *^ ^T^ • • 1 1 • c 1 point, namely, boarded in the Lnghsh Channel by a British ship ot war, and whether an the master was informed that the Elbe was blockaded, and by exclusioafrom an endorsement on his ship's papers he was forbidden to pro- ^^e port ot ceed thither. Off the Isle of Wight he was again boarded by bLlka^,ie° &? another British ship of war, which confirmed the intelligence of is an arrest the blockade, and he was again warned not to proceed to the and restraint. Elbe, under penalty of being made prize. Under these cir- cumstances he went into Spithead to obtain advice of the agent of the ship-owner, by whom he was advised ' to go to Embden, as the nearest neutral port to Hamburg,' to which port he pro- 34 266 Risks Covered. Chap. XIII. ceeded, where the consignees at Hamburg finally consented to receive the cargo, though they would have preferred that it should have been delivered at Lubeck. Upon these facts an abandonment being made, two judges were of opinion that the assured had no claim, three, that he was entitled to recover. Mr. Justice Spencer said, ' The assured claim under arrestSy restraints, and detainments. The terms do not I think embrace a case like the present ; for the master of the Orozimbo never attempted to enter the port of Hamburg, nor was there any actual or immediate restraint, to hinder him from doing so. There has been no force or vis major to interrupt the voyage. Fitzgerald' ^^^^ insurance is not on the voyage but on the subject for the Wiiies, 644. "^'oyage.(l) Here the ship and cargo remain in safety, but the assured has lost the chance of going to so good a market. The insurer has nothing to do with the state of the market. The plaintiff's counsel have said an embargo is within the policy, and have asked why is not a blockade ? The answer is ob- vious ; an embargo operates directly on the subject insured, and this does not.' Tompkins, J. was of the same opinion. Mr. Justice Thompson said, ' The underwriter stipulates that the goods shall not be prevented from arriving at their place of destination, by any of the perils insured against. In the pre- sent case I think there was a total failure and loss of the voyage by a peril coming within the meaning of the policy, under the terms restraint of princes.^ Mr. Justice Livingston said, ' It is sufficient to justify the mas- ter's conduct, in cases of this kind, if he have good reason to (2) cap. 59. apprehend that a capture will be the consequence of his going 291. on. A just fear saj^s Targa(2) is a kind of violence, so that abandonment of a vessel from a doubt of not being able to resist, (3) Disc. 23. Slid especially of being made a slave, is a loss within the policy. »• 84. And Casaregis(3) after observing that in such case " a captain ... should not rashly forsake his ship," adds, " that it is otherwise 507, c. 12." ^^ ^^^ circumstances are such as may excuse fear, credulity, or s. 26. even an error of the captain." Emerigon(4) also mentions several instances in which fear of a shipwreck, an enemy, pirates, or the like, which appeared just at the time, though not in fact well founded, have justified a dereliction of the property. These principles ap{)ly to the Orozimbo, if we once admit that capture is a peril insured against. If the master were really afraid of condemnation if he attempted to enter the Elbe, he was not bound to proceed. If he had proceeded, and a loss had ensued, he would have been censured, and have furnished a b( ttcr gromid of defence than is now taken.' Chirf Justice Kent, after saying that the case of Hadkinson T. Robinson was not ap})lic:ablc, and that the interdiction of (5) torn. 1. p. commerce at the port of destination, after the risk commences, 642. c. 12. 8. is stated by Emerigon(5) to he one of the perils insured against ; '^*- proceeds ; ' nor do I see why a blockade should not be deemed ef|iiivalcnt to any other restraint or detention. It answers the description of a peril as understood in a policy, and which in- Sect. 9. Capture and Detention. 267 eludes every peril arising from a vis major, which could not be resisted, or from a cas forluit, which human prudence could not foresee. It equally interrupts and destroys the voyage. Liber- ty to go to another port is changing the mercantile adventure, (nschmidtr and is nothing less than the compulsory institution of a new Unit. Ins. Co.' VOyage.'(l) 1 Johns. 249. Three other cases came before the same court in 1810, on this Danger of subject; in one of which the policy was on the ship, from New capture by a York to Barcelona or Salon, ' warranted American property, belligerent. proof whereof to be made here only — In case of capture or detention not to abandon in less than six months after advice thereof; or until after condemnation — If turned away for at- tempting to enter a blockaded port, the assured to be at liberty to proceed to a port not blockaded, but not to be liable for loss, for seizure, or detention, at the port of destination, in conse- quence of having touched by choice or force, at a British port.' The other two policies were on the cargo, with a warranty * not to abandon, if captured, until condemnation, or until after a detention of six months after advice of the capture.' The vessel having been out twenty-five days from New York, met a British cruiser, the officers of which endorsed on her papers a warning ' not to enter any port in France, Holland, Denmark, Spain, Portugal, Italy, or any other ports from which the British flag was excluded,' and furnished the master with a copy of the British orders in council by virtue of which this warning was giv-. en. The master was also informed that the Algerines had made war against the United States and taken a number of American vessels, and that the American consul at Gibraltar had sent out word to all American vessels bound up the Mediterranean, to call at Gibraltar for advice ; where the master accordingly put in, and was detained for some time. After being permitted to depart, and when he was about to proceed to Barcelona, he received intelli- gence of the French and Spanish decrees, subjecting the vessel to capture and condemnation on account of having put into a British port, and learned at the same time that Barcelona was occupied by the French. It seemed however that he was not apprehensive of seizure and confiscation in the port of Barce- lona ; but in consequence of intelligence that the French and Spaniards were constantly capturing American vessels, between Gibraltar and Barcelona, and on account of the danger from this cause, he gave up the voyage and returned with the vessel and cargo to New York, where both vessel and cargo were aban- doned to the insurers, and a total loss was claimed. Chief Justice Kent gave the opinion of the court. He said, ' The peril, if any, arising from the decrees, consisted either in the danger of capture in the passage to Barcelona, or a seizure and confiscation after arrival there. ' I have no idea that the apprehension of capture in transitu^ between Gibraltar and Barcelona, aftbrded a justifiable ground of abandonment. The proposition is wholly destitute of au- thority. It would lead to inconvenient and extravagant conse- quences, and confound all distinction between imaginary and 268 Risks Covered. Chap. XIII. (1) torn. 1. p. apprehended danger, and danger present and palpable. In the 507. c. 1^. s. ^.g^ggg cited by Einerigon(l) in which a just fear of one of the perils insured against, was held equivalent to force majeure^ and sufficient to charge the loss upon the insurer, the danger was imminent, apparently remediless and morally certain. Targa says, a just fear is a species of violence, and justifies an aban- donment of the ship, and Emerigon admits the same thing. But the cases given, by way of illustration, explain what is meant by a just fear. It is the fear of being made a slave, or a pri- soner, or of perishing in a case of extremity, or when defence becomes impossible.' ' In the present case the danger of capture was only contin- gent. There was no reasonable certainty of capture. A belli- gerent vessel might always be abandoned on that ground, with- out venturing on the ocean ; for to such vessels there is always more or less danger of capture, as there is of shipwreck. It is this very risk which the assured must encounter and against which the insured is to indemnify.' ' The only danger, if any, that could support the abandon- ment, was that of seizure at Barcelona, under the Aranjuez de- cree, and I think it would be going too far and beyond any pre- cedent, to adjudge that cause to be sufficient. If the port of Barcelona had been absolutely interdicted, so that the prosecu- tion of the voyage to a conclusion had become impracticable, or been attended with a moral certainty of seizure and loss, I should have deemed it equivalent to actual restraint, to the ex- istence of a vis major breaking up the voyage, and that the as- sured had ground for their claim. When such restraint actually exists, and is ascertained to be effectual, and no doubt arises of its being exerted, it would be most unreasonable to require the assured to go on, and submit to the experiment of capture, or the imminent hazard of the attempt. It would be fatal to the interest of all concerned. It would be against the duty of the assured, and he would be under a moral inability to do it.' ' I admit the good sense of the rule, that the assured shall not abandon (luia timef^ in cases in which the danger is remote and contingent, as where storms, cruisers of an enemy, or pirates threaten a vessel in transilit. But I do not perceive the fitness of its application to cases in which the port of destination is discovered and duly ascertained, in the course of the voyage, to be shut, by being in possession of an enemy, or by interdic- tion of trade, or by a blockade. The restraint is as much felt, and opcrntes as effectually, as if the vessel was actually seized. The act of entry, and the attempt to do it, become unlawful. It is as unlawful to rush into the arms of an enemy with your property, as it is to break a blockade, or force an entry into a port, when an entry is prohibited by the sovereign of such {)ort.' ' There may be doubts from what point the voyage is to be abandoned, and what s[)erirs of demonstration of the danger tho assured ought to rc(|nirc. But assuming the fact of the (rxisicnr<; of surh an inipculimenl, and of thr reasonable cer- tainty, that it would be made cllectualj to the loss of the subject Sect. 9. Capture and Detention. 269 insured, the assured is justified in giving up the voyage, and call- ing on the insurer to indemnify. It amounts to a loss of the voyage. No deviation can help the party, for the peril existed at the port of discharge ; and if the restraint is not limited, or transient, the spes recuperandi, as to the voyage, is as much gone, as if the vessel was detained, in the course of her voyage, by an embargo or capture.' ' In the present case, however, I do not think that the port of Barcelona was shut, so as to bring the case within the reach of the principle. It was not shut generally or absolutely against American vessels. The Spanish decree which operated at Bar- celona, applied only to neutral vessels, under certain special circumstances ; and whether this vessel came within the opera- tion of that decree, was a matter of uncertainty ; depending on the judicial construction which the decree might receive, in its application to that case.' ' To make out a just ground of abandonment from this de- cree, it ought to have been certain that the decree applied to the case of this very ship ; and it ought to have been equally cer- tain that it would have been put in force against the ship, had she arrived at Barcelona, and before she could have anchored twenty-four hours in good safety. If there existed a reasonable doubt of danger in both or either of these respects, the case did not amount to that just fear, which the authorities cited by Emerigon, consider as equivalent to the application of physical force and violence. I cannot consider the danger of arrest and restraint at Barcelona, from this decree, to have been so certain and manifest, as to be in any degree a substitute for the arrest itself. The captain did not consider the danger of arrest at Barcelona under the decree as worth regarding ; for he declares, that he broke up the voyage, from the danger of intermediate capture, and was persuaded that if the vessel had arrived at Barcelona, the vessel and cargo might have been protected and saved, notwithstanding the decrecs.'(a) Insurance was made upon a cargo from New York to Sweden Daneer of or Russia, with liberty to the vessel, ' to call at Gothenburg for capture by ihe orders.' The vessel arrived at Wingo Sound, near Gothenburg, public enemy. on the 14th of July, 1812, where she remained at anchor until the 24th of that month, when the master received intelligence of the war between Great Britain and the United States, where- upon he proceeded to the town of Gothenburg to avoid capture. The Baltic was thronged with British cruisers, several of which were stationed in Wingo Sound, one or more of them being con- stantly in sight of Gothenburg, and the vessel could not go to sea without passing them. It was accordingly imjiossibie to pursue her voyage without exposing the vessel to certain cap- ture. The voyage was therefore broken up. This Avas held (a) Craig v. United Ins. Co. G Johns. 226. A similar opinion was given by the same court, in another case, on a state of facts not un- like those of the above. Corp v. Unit. Ins. Co. 8 Johns. 277. 270 Risks Covered. Chap. XIII. (1) Saltus V. Unit. Ins. Co, 15 Johns. 323. Decision on the same ques- tion in Penn- sylvania. (1) Savage v. Pleasants, 5 Bin. 403. Decisions on this question in the Su- preme Court of the United ijtalci. to be an arrest and restraint within the terms of the policy, which rendered the underwriters liable for a total loss.(l) The same question has occurred in Pennsylvania, in a case of insurance upon goods on board of the ship Union, from Phila- delphia to Antwerp. The ship arrived in the Flushing Roads, on the 20th October, 1807, when a guard was put on board on account of her having been carried into England, and the guard remained on board until she sailed for Rotterdam, by the re- commendation of the consignee at Antwerp; the ship being or- dered to quit the Flushing Roads and prohibited from proceed- ing to Antwerp. While on the voyage towards Rotterdam, the ship was again captured by a British brig of war and sent to the Downs, but was permitted to proceed to Rotterdam on the master's agreeing, for the purpose of preventing further delay, to pay the captors' expenses ; but before her departure the mas- ter heard of the decree in Holland, forbidding the entry of all vessels that had been in England. And the voyage was ac- cordingly broken up, and a loss claimed on this account. Chief Justice Tilghman, giving the opinion of the court, said, ' The defendants contend that they are not responsible because the voyage was not broken up by any peril insured against, but solely by decrees of the French emperor, which prohibited an entry into the port of Antwerp.' In respect to the English decisions, and those given in Massa- chusetts on this question, he says, ' The assured may be placed in a very hard situation, as the law has been held. If he at- tempts to enter a blockaded port after notice, he forfeits the rights of a neutral ; if he attempts to trade in a port into which an entry has been prohibited, even after the commencement of the voyage, his property is liable to confiscation ; and if, being re- fused an entry, he steers for a difterent port, the underwriters are discharged, because it is not the same voyage that was in- sured.' But the court being of opinion that the abandonment to the insurers, had, in this case, been made too late, decided that the assured could not recover for a total loss.(l) Chief Justice Tilghman intimates that this case is distinguish- able from those which have been decided in favour of the in- surers in England and Massachusetts, but this distinction is not apparent. The reasoning of the Chief Justice is certainly ap- plicable to those cases. But whether it be distinguishable from those or not, he intimates his opinion respecting those ca-es pretty dislinclly by his remark that they put the assured in a ' hard situation.' This cjuestion has also come 1)cfore the Supreme Court of the United States. («) In one case before that court the policy was (r/) Thf ca«o of Symonds v. Tin. Ins. Co. 4 Dal. 417; Condy's Marsh. .'')() 1. II. doridod hi the ch-ciiit court of tlie United States, in Pennsylvania, favours the opinion, that vvhero the vessel is turned away on account of the blockade of the port of destination, the in- flurcrs are liable. Sect. 9. Capture and Detention. 271 on the freight of the Venus, from Philadelphia to the Isle of France; and while proceeding on the voyage in January, 1808, she was met and detained two days by an English ship of war, the officers of which endorsed her papers as follows, ' ship Venus warned from proceeding to any port in possession of his majesty's enemies ;' and the master of the Venus was informed verbally that the Isle of France was blockaded, and that the Venus would be good prize if she proceeded thither. The master accordingly returned to Philadelphia, where the vessel was prevented from prosecuting the voyage by the American embargo. It appeared however that the Isle of France was not in fact blockaded. Upon these facts the court considered ' whether the apprehension excited by the warning, or by the verbal communication of a British officer, justified the return of the Venus to Philadelphia. She was not physically incapacita- ted from prosecuting her voyage ; there was no legal impedi- ment to her proceeding, because the voyage Avas not prohibited by the British orders ; there did not then exist either in fact or in law, the restraint or detention against which the underwriters insured. From /ear, founded on misrepresentation, the voyage was broken up. Whether this might be justified under any cir- cumstances, it is unnecessary to determine. But the court is of opinion that the circumstances in this case did not justify it. The Venus ought to have proceeded, until she could obtain further information. It would be dangerous indeed if any false intelli- gence, received on the voyage, might justify the captain in acting k ■'j j °|' 1' as if that intelligence were true.'(l) eCranch, 7i'. After these decisions the Supreme Court of the United States -pj^g ship is in 1818, considered the question not to be settled, whether it prevmtedby it was a loss by ' arrest and restraint,' where, after the sailing of a blockade a vessel from Baltimore, and before her leaving Chesapeake . ™ proceed- Bay, that port and all the others in Chesapeake Bay were voyage. blockaded by the British squadron, whereby she was prevented from proceeding on the voyage. The case was on a policy upon a Spanish cargo from Baltimore to Havana, and the vessel having sailed on the voyage, and being near the mouth of the Chesapeake, about the 8th of February, 1813, discovered four frigates, which proved to be a British blockading squadron. The vessel was iDoarded from the blockading squadron, and the following endorsement made on her papers by the boarding officer, namely, ' I hereby certify that the Bay of Chesapeake, and ports therein, are under a strict and rigorous blockade, and you must return to Baltimore, and on no account whatever at- tempt quitting or going oiU of said port.' The blockade had not commenced at the time the vessel sailed. An abandonment of the property was made, and a total loss claimed for this re- straint. Chief Justice Marshall, giving the opinion of the court, said, ' Believing this question not to have been expressly decided, the court has inquired how far it ought to be influenced by its analogy to principles which have been settled.' 272 Risks Covered. Chap. XIII. (1) Ollvera v. Union Ins. Co. 3 Wheat. 183, (2) 6 Wheat. 186. The voyage is broken up from danger of seizure that is not insured agaiast. ' Without contesting the reasonableness of the opinion, that the loss of the voyage occasioned by the detention of the ship, by her master, in a neutral port, is not within the policy ; it may well be denied to follow as a corollary from it, that a vessel confined in port by a blockading squadron, and actually pre- vented by that squadron from coming out, does not sustain the loss of her voyage from the restraint of a foreign power, which is a peril insured against.' ' An embargo is admitted to be a peril within the policy. But the sovereign imposing the embargo is virtually in possession of the vessel, and may therefore be said to arrest and detain her, yet, in fact, the vessel remains in the actual possession of the master or owner, and has the physical power to sail out and pro- ceed on her voyage.' ' The application of force is not more direct on a vessel stop- ped in port by an embargo, than on a vessel stopped in port by a blockading squadron. The danger of attempting to violate a blockade is as great as the danger of attempting to violate an embargo. The voyage is as completely broken up in one case as in the other, and in both, the loss is produced by the act of the sovereign power. There is as much reason for insuring against one peril as against the other, and if the word restraint does not necessarily imply the possession of the thing by the re- straining power, it must be so construed as to comprehend the forcible confinement of a vessel in port, and the forcible preven- tion of her proceeding on her voyage ; if so, the blockade is in such case a peril within the policy.'(l) But the court did not consider this decision as impairing the authority of Hadkinson v. Robinson, and Lubbock v. Rovv^croft, above cited, which, they afterwards say, ' have never been shaken.'(2) The same court held in a subsequent case, that where the voyage is abandoned from fear of a seizure, from which the un- derwriters are expressly exempted, it is not a loss within the policy. It was a case of insurance upon the cargo of the Ellen Tooker, ' from New York to port or ports in the Gulph of Mexi- co and back to the United States, free from loss by seizure or detention on account of illicit or prohibited trade.' The master intended to have disposed of his cargo at Vantla or Talacuta, which he supposed to be in the possession of the Independents, ))Otli of which, however, he found in the hands of the Royalists. lie was accordingly excluded from those ports, his voyage be- ing in violation of the royal ordinances ; and he was liable to seizure also by the Royalists, because his voyage was intended to supply the Independents with munitions of war. After put- ting to sea again from Talacuta he fell in with the fieet of Gene- ral Mina bound to St. Ander, whither he proceeded with the fleet, and conti'acted with (icneral Mina for the sale of his cai'go, which was to l)c delivered there from time to time, as it might ])e wanted. But Ijcfore the whole wns delivered, a frigate of the Royalists hove in sight, to escape from which, the master oi the Ellen Tooker put of sea, but returned again soon after to Sect. 9. Capture and Detention. 273 St. Ander, which he left a second time to go to other ports for repairs and supplies, and on returning a tliird time to St. Ander, found it, together with all other ports of the coast at which the polic}'" gave him liberty to discharge, in possession of the Royal- ists. He accordingly gave up the voyage and returned to the United States. The assured claimed a total loss by restraint and detention by ' Spanish authorities.' Mr. Justice Story, giving the opinion of the court, said, ' It is not sufficient that the voyage has been lost ; the loss must be occasioned by some peril actually insured against. The peril must act directly and not circuitously upon the subject. It must be an immediate pe- ril and the loss a proper consequence of it. The real cause of the destruction of the voyage was that St. Ander was occupied by the Royalists. A trade was inhibited with that place by the ordinary colonial laws of Spain, and the voyage in which the Ellen Tooker was engaged, placed her and her cargo in the character of an enemy. A proceeding to St. Ander would have subjected her to confiscation for a double cause, the breach of the laws of trade, and violation of neutral duties. The voyage then was broken up from fear of loss by reason of the seizure and confiscation of the property. It was abandoned by the nNgj^j^h master quia timebat, and not because there was any actual direct Unit. Ins, Co. restraint.'(l) 6 Wheat.' 176. As far as any of the preceding cases rest upon the ground Observations that the underwriters are not liable for losses incurred by a fear upon the prc- o/" a/)eri7, they seem^, as has before been intimated, to depend ceding cases. upon a very obscure and uncertain maxim. If this maxim mean, that the insurers are not answerable for losses incurred on account of a peril too remote to be reasonably provided against, or the providing against which, is only the ordinary ex- pense of navigating the ship, which is to be borne by the own- ers, it is only another and rather obscure mode of expressing two principles of which there is no doubt, and which are in themselves well understood, however difficult it may be to ap- ply them in particular cases. If either or both of these princi- ples be implied by quia timet, it seems to be much more intelli- gible to express them in the usual form. It does not appear what other meaning can be given to this maxim, though it does not, as has been already intimated, seem to have been always applied stricdy in this sense. We will accordingly consider the preceding cases as depend- ing upon the questions, whether the risk in each particular case was within the policy; whether the peril was so remote at the time of taking measures relating to it, that the breaking up of the voyage cannot be said to be directly occasioned by the peril ; and whether the measures taken were only those ordinary expenses, delays, and inconveniencics, for which the insurers arc not answerable, but which, like the wear and tear and decay of the ship, must be at the charge of the owner. In regard to the case of the voyage to the Gulf of Mexico, the peril, on account of which the voyage was broken up, was plain- 35 274 Risks Covered. Chap. XIIL \j not within the policy, since the insurers were expressly exo- nerated from loss hy seizure for illicit or prohibited trade. If the vessel had proceeded to the port of destination, and the master had entered it, without knowing that it was in possession of the Royalists, and the vessel and cargo had been seized and confiscated, on the ground that trade was prohibited and unlaw- ful, the insurers would not have been liable for the loss, though it would not in such case have been occasioned in any degree by the fault of the master. The interdiction of trade being at the risk of the assured, the insurers could certainly have no concern with the breaking up of the voyage on account of such interdiction. In the other cases relating to the interdiction of trade at the port of destination, no mention is made of any provision in the policy on this subject. It is to be presumed, therefore, in rela- tion to those cases, that if the master had proceeded to the port of destination, without any notice of the interdiction of the trade; and without any fault or negligence on his part, or that of the assured, the vessel and cargo had been seized and con- fiscated on account of the trade being prohibited, the instjrers would have been liable for the loss. To determine whether a peril is insured against, it must be supposed to occasion a loss without any fault of the assured, or of the master of the vessel, since by whatever peril a loss is occasioned through the fault of the owner or his agents, the insurers are not liable except under the risk of barratry. If in the course of the voyage the master is informed of the interdiction of trade, and turns olThis course to put into port for advice, or for the purpose of a temporary delay until the obsta- cle to the voyage is removed ; all the cases agree that the risk continues as long as he has the same port of destination in view. But it is supposed that the captain uses his discretion in choos- ing measures in such cases. He undoubtedly would not be justi- fied in waiting for the interdiction to be taken off, or for the port of destination to be retaken by friends, where it had fallen into the hands of enemies, if he had no expectation of these events. It is as much the duty of the captain, in such a case, to proceed to some other jiort of discharge, or to return to his port of depai'ture, as it is in ordinary cases to proceed to the port of destination with all convenient despatch. If the vessel delays, with the expectation that the obstacle to the voyage will be removed, it is generally held to be one of those ordinary inconveniencies of which the loss and expense fall u|)on the owner, like those of delay by head winds and the like. This loss and ex|)ensc will be more particularly con- sidered subscfiuentl}^, and the decisions relating to it cited. But if there is no expectation of a removal of the obstacle, and the master is obliged by his duty, either to seek another port of destination, or to return to his port of departure, nobody will deny that this is an extraordinary proceeding ; and that it is occasioned dirorlly by th(^ interdiction of trade at the port of destination, or by its being blockaded, seems to be very plain, Sect. 9. Capture and Detention. 275 since there is no other cause to which it can be possibly attributed. It seems impossible to conceive a more complete and total disso- lution of the voyage and breaking u}) of the adventure. To hold therefore that in such case the assured cannot abandon for a total loss, and that the vessel cannot proceed to another port, or return, without forfeiting the contract, is making a policy of insurance a feeble and narrow contract, and one that is altoge- ther inadequate to the purposes which the parties to it propose, and that affords but a part of the indemnity -which its words seem to import. The parties to a policy are always understood and said to mean by their contract, not only that any specific damage to the ship or cargo shall be paid for by the insurers, but also that the property insured shall not be prevented by the perils insured against' from arriving at the port of destination. This latter proposition is laid down as a first principle of the law of insu- rance in innumerable instances, and never contradicted. And without calling this proposition in question, it seems to be difficult to comprehend how an absolute interruption and destruction of the voyage by a peril insured against, is not a loss within the policy. But the holding this loss of the voyage to be a loss within the policy, docs not prevent the assured from waiving it. He may at any time deviate from the voyage, and by undertaking a new adventure discharge the insurers from all subsequent liability. But if he seeks another port of discharge, or returns to the port of departure, not by way of speculation and from choice, in the prosecution of a new adventure, but as a measure of necessity, or as a proceeding which, on the whole, presents the fewest dis- advantages, it seems to be precisely equivalent to saving the remnants of the ship and cargo after shipwreck. The other cases in which the voyage was abandoned, not on account of the interdiction of trade, or the blockade of the port of destination, but from the danger of being captured by the enemy, seem to depend upon very much the same principles. If the voyage is abandoned to avoid the danger of certain and inevitable capture, to which the property would be exposed by the vessel's pursuinsr her course, or on account of a danger of this ,,. ^ sort so great that it would be rashness and unjustmable conduct „, phoen. Ins. on the part of the captain to proceed on the voyage, it does not Co. 5 Bin. appear why the voyage is not as much lost by the risk of cap- ^44. turc. as if the property had been actually captured. The event of the vessel's being prohibited entry at the port Liberty logo of destination is provided for, in some instances, by giving the to^np^her , ,., . ' , ' 1 A I port in case 01 vessel liberty in such case to enter some other port. A vessel ^^e port of being insured to Amsterdam with liberty, if turned away, to en- destination ter a neighbouring; port; London was held to be a neighbouring being closed. ])ort within the meaning of the policy. There was however no other port nearer to Amsterdam, which the vessel could safely enter at the time.(l) ,t , ^ . , . . ^ ' • X 11 i 1 /• 1 • Inlnwful ar- In case ot insurance against all unlawlul arrests, restraints, rests, re- and detainments,' it was insisted, in behalf of the assured, that the straints, &:c. 276 Risks Covered. Chap. XllL qualification of ' unlawful' applied only to ' arrests,' and not to Mar'. Ins! Co. ' restraints and detainments ;' but the court held that it extended \i Cranch, 59. tO thesc alsO.(]) Under a policy in this form the insurers were held to be lia- ble for a total loss on a neutral cargo of a vessel that sailed from Baltimore, and was prevented from proceeding on her voyage by a blockading squadron stationed at the mouth of Chesapeake Bay, the blockade of v/hich was instituted after the vessel sail- ed. It was the opinion of the court that the blockade did not, by the law of nations, ' According to modern usage, extend to a neutral vessel, found in port ; nor prevent her coming out with a cargo which was on board when the blockade was instituted ; (2) oiivera r. ^^xd that if the vessel was restrained from proceeding on her CcT 3 Wheat voyage, by the blockading squadron, the restraint was unlaW" 183. " ful/(2) Section 10. Risk from Prohibited and Contraband Trade. It has been intimated above, and will subsequently more fully appear, that Avhere a loss, though immediately caused by a peril insured against, arises wholly on account of a peril not insured against, it is not a subject of indemnity. Although cap- tures and seizures are among the perils insured against, yet if a capture or seizure take place through the fault of the assured, it is not a loss within the policy. Upon the same principle, if a capture or seizure take place on account of contraband or pro- hibited trade, the insurers are not liable for the loss, unless they assume the risk arising from such trade. Under the common form of the policy, without any exception of the risk from illicit or prohibited trade, the insurers are lia- ble for losses. in consequence of violations of the trade laws of foreign states, if they were apprised of the intention to violate /gs J £nier. such laws, cither by any thing contained in the policy, or by (jVA. c. 12. the known laws of the place to which the vessel is insured, or »• 51. the knoAvn usages of the trade.(3) Insurance being made on a cargo of Hour from the United States to Curra(;oa, the vessel on arriving at that island was seized, and both vessel and cargo were condenmed ; the cause (4) 45 Geo. assigned in the sentence, being that the vessel was not navigated ill. according to the pi'ovisions of the act,(-l) by which the trade was opened to foreign vessels, and that she had on board arti- cles of merchandise, which, according to that act, could not be imported in any foreign vessel. The case did not show wdiat were the provisions of the act of parliament, nor whether the vessel had on board any other goods than flour, nor in what manner the vessel was navigated. The case l)efore the court was therefore that of a cargo condemned for the violation of foreign Irade laws, withoul its a])))earing wlial those laws were, or how lliey hrul been vif)l;il((l. It was not jirovcd, nor could it be presumed in such a ciisc, tliat the insurers v.erc apprised of any intention to incur the risk. Sect. 10. Risk from Prohibited and Contraband Trade. 277 The court said, ' It is generally true, that an insurer is not liable for losses arising from a breach of the trade laws of the foreign country to which the voyage insured is made ; unless such risk is expressly assumed or must be presumed by neces- sary implication to have been intended to be taken. It has been argued that the defendant must be understood to have taken this risk, because he was informed of the nature of the 0) Parker r. voyage. But it is well understood that some trade may be ^tl'' Wery carried on at Curra9oa, and the presumption does not necessarily 173, See also arise, except where none but contraband trade can be carried Biagger. New On.'(l) _ rCWs'"549: ' If,' says Chief Justice Parsons, ' the assurer will expressly ' insure against seizure for illicit trade, or if with a full knowledge of the nature of the voyage, he will insure it without making any exception, he will be bound to indemnify the assured for the losses arising from the breaches of the trade laws of the foreign state. But although he may not take upon himself these (2) Richard- losses, and thus be responsible for them, yet he is answerable j°" ^co^ e'"'^ for any other losses insured against, because the policy is not jviass. liep. void.'(2) ' 112. As the insurers are supposed to know what trade is prohibit- ed in a foreign port by the standing regulations there, if all trade from the port where the voyage is to commence be pro- hibited, it must be known to the insurers that a violation of the trade laws of such port is intended. Under these circumstan- ces it seems, by the above cases, that the risk of a violation of the trade laAvs of such place will be assumed by the insurers though the policy contains no express provision to that effect. It appears also, by the preceding case of Parker x, Jones, that if some trade be permitted, and some prohibited, by the standing regulations, and the insurers have no reason to suppose that the voyage insured is prohibited, or is to be conducted in any re- spect against the regulations of the place, the insurers will not under these circumstances be answerable for the risk of illicit trade. But they have sufficient notice, and are liable for this risk when the article insured is one of those prohibited by the knoAvn laws of the place to which it is destined, or from which it is to be exported, according to the description of the voyage in the policy. Thus in the case already mentioned of a policy made in France on silk stuffs from Spain, the exportation of which was known to be prohibited, the insurei's were held to be ,. liable for a loss occasioned by the seizure of the goods in Spain, tom.2!p"'i3l on account of the violation of this prohibition. (3) h-t. art. 49. Upon this principle it has been decided that, even where, by the policy, tlie insurers were not to be liable for any risk on account of prohibited trade, they were still liable for such risks on articles named in the policy. It was an insurance on 'goods or speck from New York to Curra^on, Nevitas, Matanzas' and back, ' warranted against prohibited trade.' The vessel in re- turning from another Spanish colony put into Matanzas. where the specie on board was seized, as an article, the exportation of which was prohibited by the laws of Spain. The court held that as to the cargo generally, the insurers not knowing of what 278 Hisks Covered. Chap. xiir. it consisted, the contract did not indemnify the assured against \}\ -eionr. [\\[q[i trade. But as the specie was enumerated, il was not with- Del. Ins. Co. . , . , . ^ i i i i Condy's ^" ^'^^ exception, as the msurcrs were bound to know the gene- Warsh.346.n. ral regulations of the Spanish colonies.(l) It appears from the preceding cases that the underwriters will be answerable for the risk of an intentional violation of foreign laws, only as far as they are supposed to have been apprised of the intention of violating them. And if a loss happen from a breach of such laws, through the negligence or inattention of the master or mariners, the insurers will not be answerable for this loss, unless it come under the risk of barratry. But where a loss is occasioned by the infringement of a foreign regulation, with- out 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 deteruHncd in a case upon a policy on a vessel * from Ncwburyport to every port or jilace to v. hich 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 ex]:)ense arising from the violation of the existing laws or regulations of any of the belligerent powers restricting neutral commerce.' The vessel sailed lor Amsterdam and was captured on the voyage by a British privateer, and sent into Bristol, v.'hence, after being released, she sailed for Amsterdam, and arriving otf 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 hav- ing 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 dccice had been published subsequently to the date of the policy. The court decided that the exception in the policy, as to ' loss and ex])ense arising from existing regulations of the belligerent pov.'crs,' extended only to regulations existing at (he time of making the ])olicy, and accordingly did not cxem})t the under- Vv'ritcrs from the I'isk under the Milan decree. The case was thei'eforc the same as if the policy had contained no such ex- ception, and resolves itself into a loss by the violation of a fo- reign decree, of which the master had no knowledge before the capture, and his ignorance of which, was not owing to any negli- gence or fault in himself or his owners; ' there was notiiing from which tlic knowledge of the captain could Ijc inferred, of the exposure of his sh.ip under the Milan decree.' It was ac- cordingly held that this was one of the risks covered by the policy, and that the insurers were answerable for the loss. (2) ■ A cargo Ijcing insured from Boston to RioJaneii-o, the vessel, in the course of the voyage, |)ut into some port on the coast of Bra/JI for sujiplies, where sin; was seized, and being carried to Pernambiico was condemned, togeihrr with her cargo, on the ground of her having Ixen destined to Hio.laneiro, with the inten- tion of trading there in violation of the Portuguese laws. It was generally kt own in the United States that all trade by Amcri- C'2) Wood r. N. E. M. Ins. f'o. II ,\Iii?s. Kt-ii. .31. Sect. 10. Risk from Prohibited and Contraband Trade. 279 cans, at Rio Janeiro, was prohibited by the laws of Portugal ; though American vessels frequently cleared out for that port, for the purpose of illicit trade. The insurers objected to pay- ing the loss, on the ground that it was occasioned by an attempt to carry on illicit trade, which they contended was not a risk insured against in the policy. Mr. Justice Sedgwick, giving the opinion of the court, said, (l) Pollock v. * A capture for illicit trade is not insured against, unless the risk |Pi^'^^°^'^' ^ be expressly or impliedly assumed.' But the court seemed to be 234. * See'also of opinion that it was assumed in this case, and held that the Lever r. insurers were liable for the loss.(l) Fletcher, Trade carried on in violation of the lav/s of a forcion state is f^'^h .f.^ ' called contraband ;(2) and so also is trade carried on in viola- Grade, Con- tion of the laws of the country of which the parties are sub- dy's Marsh. iects.fS) But contraband more frequently sio-nifies the trade of ^?^- "• • ^'" a neutral to a belligerent country, in arms or military stores, or Maryl. Ins. his trade in any articles to a blockaded port, or besieged town Co. 7 Cranch, of one of the parties at war- These are the two kinds of trade ^06. which we are at present considerine; under the name of contra- \j ^°,i' °" 1 o 58 ; o Mass. band. Rep. 112. The risk arising from the contraband character of the goods, t^- , ^ p stands upon the same ground with that arising from prohibited traband. trade. The circumstance of the goods being contraband, may /3s ^^ ^ expose the goods and also the ship, to seizure and detention. Cout. de la But if the underwriter does not take the risk of contraband, Mer. P. 3. a. though he insures against seizure and detention generally, he is £•„"•*' ^^'^^"' not liable for seizure or detention for this cause. Chief Justice Parsons, giving the opinion of the court, says, ' If, after the war is known to exist, a ship laden wholly, or in part with munitions of war, is insured to the countrj'^ of one of the powers at war, and the insurer has not insured against cap- ture for contraband trade, the policy would not be void, but the assurer would not be holden for a loss by condemnation on ac- count of the contraband goods. So if the country, to which the ship was destined, engaged in a war after the commence- ment of the voyage, the policy would not be void ; but if the master, after notice of hostilities, continued his voyage, and was condemned for being bound to a port of one of the belligerent nations, with munitions of war on board, the assurer would not be liable, because he did not insure against capture for that cause.' ' It has, hoM^ever, been supposed that there is a difference be- tween the cases ; for the loss in the former case arose by con- demnation yi/re6c//i; and it is a rule that the declaration of war, or a treaty of peace, made after the commencement of the risk, does not vary the rights or obligations of the parties to the policy. The elTect of the rule when applicable, is, that each party is bound by the contract, whether the perils insured against be- come greater or less by war or peace. The rule therefore ex- tends only to the degree of the hazard, and not to the nature of the peril ; for by the breaking out of the war the insurer be- comes liable for no perils which he had not insured against ; 280 Risks Covered, Chap. XIII. although the perils insured against become much greater by this event.' ' The other description of goods, contraband of war, includes all neutral merchandise bound to a port known to be blockaded. If before the commencement of the risk, the port is known to be blockaded, the assurer docs not insure against condemnation for contraband trade, the policy is good as to all the risks in- (1)6 Mass. surcd against ; but the assurer is not responsible for any loss Kep. 115. arising from such condcmnation.'(l) The liability of the underwriter for the risk, arising from the contraband character of the goods, depends upon the same cir- cumstances as his liability for the risk occasioned by violating foreign trade laws. If it appear from the description of the goods insured, or any provision in the policy, or from the cir- cumstances under which 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 ac- count. 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 condition that the goods were not loarranfed seemed to imply that the in- surers were to assume some risk as to their character, and this risk, whatever it was, seemed to relate to their character as con- traband, for the goods w^ere represented to be the property of particular persons, and it must accordingly have been known whether they were neutral or not. The goods consisted partly of duck, ticklenbcrghs, cordage, ratlines and twine, which were condemned in the British vice-admiralty court, at New Provi- dence, as contraband of war. It appeared that the importation of these, among other goods, was specifically permitted by a proclamation of the government at Havana. Mr. Justice Kent said, ' The cargo was shipped to Havana in consequence of a proclamation of the governor of that place, enumerating certain articles (of which articles the present cargo consisted) which might be im})orlcd in American bottoms. This proclamation was a public act, materially affecting the American trade, and it may be inferred that it was publicly known. If that be the case, we can hardly presume otherwise than that the underwri- ters must have known, and need not have been told, that the cargo consist(>d of particular articles enumerated in the procla- mation.' Mr. Juslice Lewis said, ' The cargo consisted of the very articles to which the permission extended ; here then was siidicient to have put the insurers on their guard, and if they (2)Sf;ton r. ,|j,| pf^^ choose to in.iuire, it is presumable that they intended to Ca«. 1. ^'■♦'<'' '•"' risk.'('i) These two judges, and the others, who gave opinions in this rase, assumed, very distinctly and exi)licitly, that if the insurer is informed l)y the policy, or otherwise, what kind of goods he Sect. 11. Other Perils. General Clause, 281 insures, he takes the risk of their being seized and condemned /j-) skidmore as eontraband, unless this risk is unnecessarily incurred or en- v. Desdoiiy, 2 hanced by the fault of the assured, or of those for whose con- Johi". Cas. duct he is answerable. V'\ ^^^'^^Y'- rr,, . , . , , -111 Jvhinelauder, Ihis doctrine was subsequently recognised by the same 2Johns. Cai. court,(l) and Avas adopted and conlirmcd by the court of errors 120. in the same state. (2) It is a consequence of this doctrine (~) ^^hme- distinctly acknowledged in the cases just referred to, that if it jJJj'Jj ^ appear by the policy or otherwise, that the insurer waives being Johns'. Cas. informed of the kind of goods insured, and so waives the right ^87. of taking any exception on this account, he assumes the risk arising from their being considered contraband ; it being under- , stood, no doubt, 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 may per- haps be entertained respecting this doctrine ;(3) but admitting it to (3) Supr. 39. be correct, 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 deten- tion or seizure as contraband of war. This makes it a question of representation in one sense ; that is, if the insurers have no ground to object, on account of ihe concealment or misrepre- sentation of facts, they assume the risk arising from contraband, as far as it is not voluntarily superinduced by the assured. But according to Chief Justice Parsons's view of this subject, taken in connection with the doctrine adopted in New York, it is not, in the ordinary sense, a question of representation and conceal- ment, for he says that the policy is not void though the risk of contraband remains Avith the assured. 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- (4) Sawyer t-. demnation of property for a violation of a blockade, when there ^^y"*^ ^ ^-.c, was in fact no legal existing blockade, the insurers were held to Mass. Rep. be liable for the loss.(4) 291. Section \\. Other Perils. General Clause. The preceding risks are specifically enumerated in the com- mon form of marine policies. Although the indemnity thus stipulated is very comprehensive, the parties in some instances enumerate other particular risks, or specify the kind of damage arising from the usual risks, for which indenHjity shall be made. 36 282 Risks Covered, Chap. XIII. Insurance was made in England on the expenses of a voyage, or in effect upon the freight, with a stipulation, ' that if the ship O) ^^^^^- should not load a cargo at Riga by the act of the Russian go- 473.'" amp. ygj.j^j^p|-j^ ^^le assured were to receive a total loss. '(1) A license of trade from the enemy was insured, in Massachu- setts, among other risks, ' against its being destroyed or render- ed useless by the ordinary perils of the seas, fire or otherwise,' and it was rendered useless by being endorsed by a British offi- (2) Perking i-. cer, who, in the course of the voyage, boarded the vessel on N. E. M. Ins. board of which it was insured ; and this was held to be a loss Sp!2H.'" Within the policy.(2) After the enumeration of the particular risks, the policy usually 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 insurance,' in the place where the policy is made ; others say, ' all other losses, &;c. for which the insurers are legally accountable.' But the old form has been so much restrained by construction, that any express qualification of the clause seems to be of very little im- portance or effect. Where the written part of the policy contained a clause by ,-. P . which the insurance was declared to be ' against all risks,' the Knox iJohns. court in New York said, 'This expression is vague and indefi- Cas. 337. See nite, but if we allow it any force it must be considered as erect- also Skidmore jj^g ^^ special insurance and extending to other risks than are JohnT °' ^'"^ usually contemplated. We are inclined to apply it to all losses Cas.77. except such as arise from the fraud of the assured. '(3) In England the general clause seems to be used without any ex- press modification, and according to the old form, which is adopted also in the greater number of policies in the United States. But it is construed to extend only to perils of the same kind — ejusdem gtne.ris — with those enumerated. Thus in case of \Vildman 3* dollars being thrown overboard, to prevent their falling into the B. & A. 398. hands of the enemy when the ship was captured, the judges See also Thil- thought the insurers liable under this general clause, as capture sii'&A^'^fGi' ^'^^ ^^^ ^^ ^'^*^ enumerated perils, and this loss was incidental (5) Cullcn V. to it, or fjusdem gmcris.(4) Butler, Park. Damage by being fired into through mistake, was brought ^w^'i^o u' under the same clause, as being ejusdcm generis with the perils of Cited *J Da O^ .1 / ^ \ A. 403. t'le scas.(5) ,..,., This explanation is not very definite, but it shows at least that the courts think this clause is to be very much controlled and rf'slraiiied, and that it adds very little, if any thing, to the liabiHty assumed by the insurers under the other stipulations of the policy. Sect. 12. Remote and Consequential Losses. 283 Section 12. Remote and Consequential Losses. It is a rule that the insurers arc liable only for the direct, and not for the remote and consequential losses occasioned by any peril in the policy. But what damage is direct, and what con- sequential, is often a difficult question to dctei-minc. Under a policy free from losses by 'illicit trade with the Spaniards,' the (1) Higginson insurers are exempted from losses by ' seizures to prevent illicit ''• ^1^°^'"^°^' traffic as well as seizures to punish it ;'(1) which shows that a jjg ^"' ^^" loss comes under a particular risk, not merely when it is a con- sequence that follows the actual incurring of the risk, but when it can be fairly attributed to the risk, and is occasioned by it, or arises directly on account of it. A vessel being compelled by sea-damage to put into Marti- porter and nique to repair, for which purpose it was necessary to discharge claret sold to the cargo, a part of which consisted of porter and claret, these prevent its be- articles being liable to be spoiled by the heat of the climate, ^^| heat! were necessarily sold on this account. The loss from the ne- cessity of selling the porter and claret was held not to be such (2) Goold » a consequence of the perils of the seas, by which the vessel had Shaw, 1 been damaged, as to render the insurers of these articles liable Johns. Cas. f *u- 1 /o\ 293; 2 Johns. for this l0SS.(2) _ Cas. 442. Where by the terms of a policy on slaves the insurers were ^ . , f ^ 1 r L 1-1 • y 1 r 1 i LosS of slaVCS liable lor mortality by mutinj^,' and some ol the slaves were who die of killed at the time of a mutiny by being fired upon, others after- despair onac- wards died of their wounds, and others chose a voluntary death count of the by fasting, or died through despair, and the sale of the survivors ^^"ijiy° was injured, and the price of them reduced by the circumstance of the mutiny having taken place ; Lord Mansfield instructed gchmoir "* the jury that the underwriter was liable for the loss of those Park, 97; l killed durinc: the mutiny, and also those who afterwards died in T. R. 130. n. consequence of their wounds; but he said,' 1 think the under- yjfi;^ u^^ a writer is not answerable for the loss of the market, that is a re- 11. 15; mote consequence,' and he was of opinion also that the under- Kmer. c. 12. writer was not answerable for the loss of such as died by fast- ^-l^'' ^"^'p*^" ing, or through despair.(3) ,, , , , ha^iginWe. Where a voyage was unusually prolonged by bad weather, slaves thrown and contrary winds, and thereby the ship came to be short of overboard on water and provisions, and on this account a part of the slaves accountof the were thrown overboard ; this was held not to be a loss by perils Y*^^^!. / of the seas, for the loss was not a direct consequence of those visions. perils.(4) A vessel and cargo were insured from the United States to j^ , Great Britain. Before the vessel left the United States she was embaro-o foi- arrested by an embargo, imposed for ninety days, and before lowed by war. the expiration of that time, war was declared against Great (4)Tathamt'. Britain, whereby the voyage was rendered unlaw ful. The ques- Hodgson, 6 T. tion was, whether the voyage was lost in consequence of this ^* ^^^* detention. Mr. Justice ScAvall, in giving the opinion of the court, said, ' The declaration of war, which defeated the voyage, was in no sense a consequence of the embargo ;' and it was ac- 284 Risks Covered. Chap. XIII. cordingly held that the insurers were not liable for the loss of the vojage.(l) While the ship A cargo being insured from New York to Havre de Grace, s detained by the ship was arrested and carried into England, where she was capture, the detained till after the port of Havre was declared by the Eng- natioiiis^^ '" ^^^^ government to be in a state of blockade. After the declara- blockaded. tion of blockade, the ship, and the goods insured were released, (1) Delano r. but the ship could not proceed to the port of destination on ac- Bed. Mar. count of the blockade. The court said that the assured, to cn- Ms R ^^ ^^^^^ himself to recover for a total loss, must show ' that a loss 347", * of the voyage was occasioned by the detention,' and they were (2) Barker r. of opinion, that 'the impossibility of prosecuting the voyage, Blakes, 9 which arose durine;, and in consequence of the detention, misrht East, 283. 1 1 • 1 i 1 +• ii v«\ ' be properly considered a loss 01 the voyage. (2) On account of Under a policy on goods from Philadelphia to Antwerp, the ca-^ture the ^^^P ^^'^^ capturcd by a British privateer and carried into Ply- vessel is de- mouth, but was soon released and permitted to proceed ; she med admis- -^yas howevcr prohibited entry at Antwerp, on account of having port^f des- been thus detained by a British vessel and carried into Ply- tination. moulh. Chief 'Justice Tilghman and Brackenridge, J. were of opinion, upon the authority of Barker v. Blakes, that the loss /gx Sava"-e v ^^" ^'^^ ^'^J'^E^i ^^^'^^ ^^5 ^'^^ prohibition of entry at Antwerp, — Pleasants^, 5 * was a consequence, of the capture and detention, which were in- Bin. 403. surcd against.(3) Damage ac- A vessel that put into Cadiz was delayed there by an epi- crues in con- demic, on account of which, damage accrued ; Mr. Justice Kent ridemk°re" said, ' The damage resulting from "the pestilence at Cadiz, is vaiiin'^ata covered by the poHcy. It is not requisite to decide absolutely port where the whether a pestilence is a peril directly within the policy. It ship puts m. formed a sound excuse for delay at Cadiz, and if a consequence (4)^Wii!iams ^f ^j^^|- Jeiyy ^yas a deterioration of the subject insured, the in- Cai'nes V." surer must be answerable for the loss.'(4) Lossbyrais- Among the other consequences of damage to the ship which ini,' funds upon renders repairs necessary, may be that of putting into a port, disadvantage- where it is dilficult or impossible to procure materials and work- re'^airda-^" men to repair the ship, or where the expenses of repairs are mage. very high, or may be enhanced by the necessity of procuring funds by draAving bills at a discount, or otherwise upon disad- vantageous terms, and by making sacrifices. All these ex- penses, losses and disadvantages, are considered to be among the direct consequences of the tlamage, and some of them come (5) Furneaux under the provision, as to ' suing, labouring, fcc. for the safe- f. Bradley, guard of thc property.' That the risk of being driven ashore, \'^\^- u^^ ' ^^ necessarily putting into a place where workmen and materi- Coin. Ins! Co. ^Is cannot be found, is among the risks included in the common 11 Johns. 13; form of the policy, has never been questioned ;(5) and the Peters r. allowance of thc premium necessarily given for money, or thc ('o!^*i Her- & discount on the master's drafts, is a matter of daily practice in Rawlc, 25. ;idjusting losses. l)am;.Ke ron- Iticascof the Stranding or shipwrcck, thc insurers on ship »..'ju. lit upon ;i,i(l goods are respectively liable, not only for thc damage which *t audhi'''* ""^ is done lo the subject specifically by thc disaster, and by plun- Sect. 13. Concurrence of Different Perils. 285 der or other inevitable casualty on shore,(l) but also for all (i) Bondrett the expense incurred for the purpose of saving the goods or v. Hcntigg, i getting the ship ailoat.(2) These expenses may also be re- \]^}^\ ^^^' covered under the clause authorizing the assured to sue, labour ^g^ j_ q^^' ^' and travel for the safeguard of the property. The unavoidable loss by plunder of the property driven ashore, is a direct con- (3)stevens on sequence of the shipwreck or stranding, for which the insurers av. 155 ; against sea-risks are answerablc.(3) And the loss of the boat, I'oth.h. t. No.- as well as damage to the ship or tackle, by shipwreck or strand- rA stevenaon ing, is covered by a policy on the ship against sea-risks.(4) Av. 153. In a policy of reinsurance the reinsurer having notice of a Expense of loss, under the original policy, and neglecting to adjust the same, resisting the is liable for all the expense reasonably incurred by the reassur- ^^^™ °" ^^^ ed in resisting the claim for a loss ; and among these expenses u^y is a part are included the costs of defending the suit brought on the of the loss ia original policy. The notice to the reinsurer does not affect his reinsurance, liability for the amount of the loss recovered on the original po- licy, for which he is equally liable without notice ; but it may be of some importance in enabling the reassured to recover the ex- penses of defending the suit on the original policy. When these expenses are incurred for good cause they are considered a di- ^^ p^^gte ^'3 rect consequence of the event insured against.(5) Caines i9o'. Section 1 3. Concurrence of Different Perils. If a loss is occasioned by different perils it is to be attributed to that by which it is more immediately occasioned ; causa proxima spectatur. If the different perils are both insured against, this rule is only of importance in regard to the mode of declar- ing in the action for the loss ; but if one of the risks only is in- cluded in the policy, the application of this rule determines whether the insurers are liable. It ought therefore not to be applied, except in cases where the loss is exclusively occasioned by one of the perils, or where it is impossible to distinguish how much of it is occasioned by one peril and how much by the other, since the rule supposes the perils insured against are blended with those not insured against, and if one or the other be considered the leading and efficient cause of the whole loss, it operates to the prejudice of one of the parties. The cases de- cided under this rule will show that it is doubtful and uncertain in its application, which furnishes another reason why it should /gx ^^.^.^ ^ not be resorted to, except in cases that cannot possibly be de- Janson, 12 cided upon any other principle. East, 648. Lord Ellenborough says, ' If a ship meet with sea-damage, a. ship being which checks her rate of sailing, so that she is taken by an captured in enemy from whom she would otherwise have escaped, though consequence she would have arrived safe but for the sea-damage, the loss is ^^■? ^J JJ 1 -1 1 t 1 I °i 1 perils of the to be ascribed to the capture and not to the sea-damage, and seas, it is a this upon the principle that causa proxima non remola spccta- loss by cap- tur:{6) *>^''^' 286 Risks Covered. Chap. XIII. Barratrous de- riatioii and subsequent loss by sea- damage or capture. (1) Vallejo V. Wheeler, Cowp. 155. (2) IM'Intyre r. Bowne, 1 Johns. 229. The ship is ■wrecked by barratrous conduct. (3) Heyman r. Parish, 2 Camp. 149. (4) Hazedorn e. Whitmor", 1 Stark, 157. The ship is taken out of her course by an excepted peril and then lost by one of the risks enu- merated in the policy. The ship is taken out of her course by a peril insured aqainst, and then lost by an «xcepted peril. In case of a barratrous deviation and subsequent loss by sea- damage, though there was no direct connection between the two, Lord Mansfield said, ' there is a great deal of reason to say that the loss sustained was in consequence of the alteration of the voyage.'(l) A vessel being insured from Trinidad to New York the mas- ter barratrously deviated from the course of the voyage, and after this deviation the ship was captured. This was held to be a total loss by barratry, which was in effect holding that the capture was a direct consequence of the barratry, though there seems to have been no immediate connection between them.(2) But this decision went merely to the mode of declaring for the loss, as it does not appear that capture was not insured against. A ship being wrecked in consequence of the barratrous con- duct of the captain. Lord Ellenborough considered it, as to the purpose of declaring in the action for the loss, to be a loss either by perils of the seas or by barratry.(3) But undoubtedly the insurers are not liable for such a loss, unless they insure against barratry. A vessel being arrested by a public ship was compelled to make a press of sail to keep company with the public ship, in consequence of which her cargo was damaged. Lord Ellen- borough said, that, for the purpose of declaring in the action, this might be considered a loss either by detention or perils of the seas ;(4) but to render the insurers answerable for such a loss, detention must, no doubt, be one of the perils insured against. A cargo being insured against the usual perils, ' French risks excepted,' the vessel was captured by a French privateer, and recaptured by a British frigate, and carried into Jamaica, where the cargo was condemned as French property. The insurers were held not to be liable for the loss. Mr. Justice Radcliff said, ' The terms of the exception must mean that the insurer is not liable for any loss by the acts of Frenchmen. '(«) The commissions of the assured, as consignee of the ship, be- ing insured in a policy by which the underwriters were ' exempt- ed from all loss that might arise from the ordinary perils of the seas,' with an agreement on the part of the assured not to aban- don until condemnation, or ninety days after capture; the ship was captured, and, twelve days afterwards, being in possession of the captors on the course to Halifax for adjudication, was lost by the perils of the seas. Parker, C. J. giving the opinion of the cour(, said, ' if the ship had arrived she might have been restored. 'J'he assured had stipulated not to consider the cap- ture alone as a loss, but to wait ninety daj's for the event, unless (a) Rof^ot V. Thurston, 2 Johns. Cas. 248. The rules of the Pe- tapsco Insiiranco Company of Haltiniore provide, that in case pro- perty insured apfainsl sra-risks only is captured, llie risk shall cease until the property, in case of its l»elnf»' nMeased, shall reach the nearest point, in the due course of the voyage, to that at which it WiXM captured. Sect. 13. Concurrence of Different Perils, 287 a condemnation should sooner take place. In twelve days she is lost by the perils of the seas. She was then at the risk of the assured, because the loss happened within a time in which he had stipulated not to throw the loss by capture on the under- writers : and because the loss was not the immediate and neces- i}^}f^,^- ,„ sary efiect of the capture. Nor is it certain that it may be at- ^^^^^^^ ^iep. tributed to that at all.'(l) 112. A ship being insured ' free from American condemnation,' at- a ship being tempted to sail from New York during the night, in contraven- wrecked is tion of an embargo then in force, but was driven by a body of *^^" «eized. ice and the wind, upon the rocks on Governor's Island. The master and crew made every exertion to get her off, but without success. A large hole was made in her side by the ice, and her bottom was broken by the rocks, in consequence of which the water rose four feet in the hold, and she fell on her side when the tide left her. She was afterwards seized and con- demned for a violation of the embargo. Lord EUenborough said, ' As it appears to me this case falls within the principle that causa proxima non remota spcctatur. It seems to be use- less to be seeking about for odds and ends of previous and par- tial losses when at last there was one overwhelming cause of loss, which swallowed up the whole subject matter. The total loss by the subsequent seizure and condemnation, takes away the right to recover in respect to the previous partial loss by sea-damage. Where the property deteriorated is afterwards totally lost to the assured, and the deterioration becomes ulti- mately a matter of perfect indifference to his interests, he can- not make it a ground of claim upon the underwriters ; he can have no claim to indemnity where there is ultimately no damage to him from any peril insured against. Suppose the ship and cargo to be damaged in the early part of the voyage by sea- C^) ^'''^ ^• perils, and afterwards wholly destroyed by fire, is not its pre- Ea'sr'648. vious deterioration wholly immaterial ? There may be cases in But see Coit which, though a prior damage be followed by a total loss, the ^- Smith, 3 assured may nevertheless have rights and claims in respect to ^^^°'' 'Pf* * ^, . y . 1 T 1 ° r ■ -^ 16 ; and Law- tnat prior loss. Actual disbursements lor repairs, prior to a rence r. Aber- total loss, are of this description, unless they are more properly deen, 5 B. & covered by the authority of suing, labouring, &c.'(2) But the ^' ^^'^' assured might, on the ground assumed by the court, have claim- ed a total loss, since the seizure was a matter of indifference af- ter the shipwreck. As the loss by sea-damage might have been distinguished from the loss by seizure, there seem to have been very strong reasons for making this distinction. Chief Justice Kent says, ' Suppose, the policy against capture caseofa only, and the vessel was captured and then shipwrecked shipwrecked while in the hands of the captors, I should think the assured after capture, might maintain that his right to recover for a total loss attached (3) Schieffeiin upon the capture, and that the subsequent casualty was one Avith ^' ^^ \°^^ which he had no concern.'(3) Johns. 21. ^ A ship and cargo being insured in a policy by which ' the un- . , ; ^, derwriters were exempted from capture,' the vessel met with care:o being bad weather which rendered it necessary, for the general safety, damaged by 288 Risks Covered. Chap. XIII. perils of the to throw over the anchors and cables and a third part of the seas are after- cargo, and the hull was so much damaged as not to be worth tm-e'd ^^^" repairing ; after which the vessel was captured. It was held that the policy covered the loss of that part of the cargo which was thrown overboard, but not the damage sustained by the vessel before the capture. The court said it was a loss of the vessel by capture, unless the damage by perils of the seas to three fourths of the value distinguished this case from Green v. (1) Supr. 212. Emslie,(l) and Livie v. Janson,(2) and made it a total loss by those (2) Supr. 287. perils. ' We have been struck with this distinction and have not abandoned it without much hesitation, because technical rules only seem to prevent the assured from recovering.' But the court said, if this had been an insurance against capture only ; notwithstanding the sea-damage, the insurers would have (3) Rice V. been liable for a total loss. ' When the subject matter is wholly Homer, 12 lost by a subsequent peril, the antecedent partial loss is merged Mass. Rep. and gone, so that no action can be founded upon it, no repairs ^"'^" having been actually made.'(3) The ship being Jq a policy on the ship ' the assurers took no risk in port but then^burM it ■''^a-risk.' The ship was driven on shore, opposite to the Isle of is a loss by ' Leon at the port of Cadiz, at high water, the water being six- perils of the teen feet higher than it had been known to be before. When ■eas. ^Yie gale abated she lay high and dry nearly two hundred yards from high water mark, and was buried in mud and sand to within three streaks of her bends. The master believed the ship to be bilged, but could not ascertain the fact. She could not have been got off without taking her in pieces, or digging a canal, which would have cost more than the value of the ship. Some French soldiers from a neighbouring battery set fire to the ship in this situation, whereby she was wholly consumed. Chief Justice Kent, giving the opinion of the court, said, ' The place where the ship lay at anchor when the storm arose, and the place where she was stranded, Avere both of them equally in port. The only question is whether the loss was, or was not, (4) Patrick r. by sea-risk.^ The jury had given a verdict for the assured on Com. Ins. Co. the ground that it was a loss by sert-mA", and the court did not 11 Johns. 9. jj^jj^i^ proper to set it asidc.(4) Thecargoofa 13^^ under a policy, with the same exception, on the cargo of i^*^-^" i^„J'/';^ iJic same ship, and which was burnt in the ship, it was the being burnt, it . . ,. , ' i , , • • i i i is not a loss by opuiion ol the court that ' as the cargo was not nijurcd by the perils of the Stranding, the loss of it must be attributed to the act of the •eas. French, which was a peril not insured against.'(5) (5) I'ntrick V. Com. Ins. Co. Section 14. Loss npon one Subject by Damage to Another. Under the principle that the insurers arc not answerable for the remote consc(iuences of perils insured against, the (]ues- lion arises how far a damage or loss of one subject of insurance, will constitute a loss under a j)()licy upon another. If the siiip be wr(>r.|{C(| or disabled from j)nrsuitig the voyage ])y the j^erils insured against, it is, as we shall sec hereafter, a total loss of Sect. 14. Concurrence of Different Perils. 289 ship and freight. The same disaster may be a total loss of the cargo, and the profits and commissions that would have accrued upon it, though the whole of the cargo is saved, and may have sustained no damage, if no other vessel can be found at or near the place where it is landed, within a reasonable time, and at a reasonable expense, for carrying on the cargo to the port of destination. But it is a subject of some doubt how far a loss of the ship Whether ex- is a partial loss on the goods, by subjecting the shipper to addi- t^a freight is a tional expense of freight by another vessel. ^°f. "°'^^'' * ii'i-i 1 11 1 -ii policy upon A ship havmg been captured was sold, together with the cargo, goods. and the proceeds of both retained to await a final adjudication. Both ship and cargo were finally restored, but a pro rata freight was decreed to the owners of the ship out of the proceeds of the cargo. The shipper claimed of his underwriters the amount of freight so decreed. Lord Mansfield said, ' As between the owners of the goods and the underwriters upon the cargo, the latter have nothing to do with the freight ; they have not en- Moud^iiani"* gaged to indemnify the owner of the goods against it.'(l) Park, 90. In regard to the same question, Mr. Justice Story, giving the (2) Caze v. opinion of the court, said, ' As between the assured and un- ^^}}' ^^V^ derwriter on the cargo, the latter is in no case responsible for sgg. But see the payment of freight, whether there be an abandonment or i Vai. 65. tit. not. It is a charge on the cargo against which he does not un- ^" ^^^*- ^• dertake to indemnify the owner.'(2) 42g ^ -^' It is to be observed that the judges had in view cases where s, 16 ; Poth. only one freight was paid, and not the case where one entire tit. des Char- freight had been earned, and an additional expense of freight io^'^^o^e^'lje ' incurred on account of the perils enumerated in the policy upon Com. liv. 2. the goods. A case of this latter description has occurred in t. 8. n. 107. New York. A ship being captured was soon released, but the cargo 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 to carry on the cargo, entitled the owners to entire freight. The cargo was afterwards released, and the owners of it, after having paid a full freight to the ship on which the goods were originally shipped, were obliged to pay an additional freight for the transportation of their goods to (3) Mumford the port of destination by other vessels. The insurers of the v- Com. Ins. cargo were held to be liable for this extra freight.(3) Mr. Jus- ^^^ ^ "^°^"*- tice Wild, speaking of this case, says, 'No one, I think, can (4)'nMa»«. doubt it was correctly decided.'(4) Rep. 476. A ship bound on a voyage from Slam 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 as- sured claimed of the insurers a reimbursement of the amount of freight paid to the Dutch vessel. The freight paid to this ves- sel did not amount to so much as would have been due to the owners of the original ship, according to the charterparty, for 37 290 Risks Covered. Chap. XIII. (1) Dodge V. Union Mar. Ins. Co. 17 Mass. Rep. 471. (2) Searle v. Scovell, 4 Johns. Chan. Rep. 218. A. loss of the cargo is not a loss of the voyage under a policy on the ship. Loss of ship or goods is a loss of freight. (3) Alexan- der r. Bait. Ins. Co. 4 Cranch, 370 ; Kulen Kemp r. Vigne, 1 T. R. 304. (4) Barclay r. Stirling, 5 M. & S. 6 ; Whitney r. New York Firem. Ins. Co. 18 Johns. 208. A ship forfeit- ed by an act of barratry, is not seizfd un- til after the risk eud». the part of the voyage remaining to be performed after the shipwreck. Mr. Justice Wild, giving the opinion of the court, said, ' If however the Dutch ship had cost more, the underwri- ters 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 cus- tomary freight from Siam to Amsterdam. The owner might have insured the freight ; but surely his having neglected so to do will not enlarge the responsibility of the underwriters on the cargo.'(l) The rule on this subject as laid down by Chancellor Kent, is, that the underwriters are liable for the excess of the freight which the assured on the goods has been obliged to pay, in con- sequence of the perils insured against, over the amount which would have been due by the original charterparty,(2) or over the customary freight for the same voyage where there was ori- ginally no express agreement, as in case of the goods belonging to the owner of the ship. The loss of the cargo, whereby the voyage is no longer worth pursuing, is not a loss on the ship. This is not a breaking up of the voyage for which the insurers are liable. (3) But the damage or loss of the cargo, whereby the ship is pre- vented from earning freight, is a loss on freight ; for the peril operates as directly on the freight by a damage to the goods by the transportation of which the freight is to be earned, as by a damage to the ship which is to earn it.(4) Thus under a policy on freight ' free from seizure,' the freight was lost by a seizure of the goods, and the insurers were held to be protected from the loss by the exception.(a) Section 15. What Los^ses are ivithin the Period of the Risk. It is a general rule that the ins\'-crs arc answerable only for those consequences of a loss which take place before the termi- nation of the risk, and in some instances where the cause of a loss has existed during the risk, l)ut has not resulted in an actual loss until after its expiration, the insurers have been held not to be liable. The forfeiture of a ship insured was inciuTcd during the con- tinuance of the risk by the barratrous act of the master in smuggling goods, but the ship was not seized for the forfeiture (r/) Johns. 10. Suppose a ])olicy made upon the master's com- missions for .sollinp;' the outward carg'o and investinf;;^ the proceeds, and ho is washed ovorhoard in a storm, on the outward passaf^e, wherohy ho is provotitcd from oarning his commissions, is this a loss of his commissions by perils of the seas ? Sect. 15. Losses within the Period of the Risk. 291 until after the risk had ended. The insurers were held not to (i)Lockyert'. be liable, as the loss had not in fact happened during the risk.(l) oifley, l T.R. A ship, that was insured for a certain time, met with an injury ^^^* from a peril insured against, and received her death wound, A ship sinks three days before the expiration of the risk, but was kept afloat "^^l^ in^conse- by pumping, until after the period of the risk had expired, and quence of sea- was then totally lost. The insurers were held not to be liable tiamage sus- for the loss.(2) There seems however to be no reason why the thcTrisk ""^ insurers should not in such case be answerable for the loss .„. ^ which is actually sustained during the continuance of the risk. ,,_ Duniop°"^ But the total loss of the ship may have been owing to her being cited i T.'r. at sea when the risk terminated, whereas, had she been near a "60. See also port when the injury happened, perhaps she might have been ^""""p^^ ^'• saved and repaired at no great expense. As the insurers did park, 257. not take the risk of her situation at the end of the risk, they ought not to be liable for loss on this account. But this is no reason why they should not be answerable for the amount that might have been recovered upon the most favourable supposition, in respect to the situation of the ship at the end of the risk. In case of an insurance upon horses from Liverpool to New A horse insu- York, one of the horses was badly injured by a peril insured red, receives against, during a gale, a few days previous to the termination of ^'^ '^^a^durin the voyage, in consequence of which he died three or four days the voyage, after being landed. Mr. Justice Radclifte said, ' If the horse had but dies after been thus partially injured and continued to live, there can be '^^'"S landed, no doubt but the insurer would have been liable for the diminu- tion of his value. His subsequent death cannot alter the case. It is merely evidence of the extent of the injury, his death wound being received during the voyage.' Mr. Justice Kent fully agreed with the doctrine in Lockyer r. Offley, that ' the insurer is not liable for losses happening after the term prescrib- ed in the policy, although in consequence of a peril in the po- .^v ^ ., licy. What was the condition of the cargo when landed was Smith^S *" the only question. In this case one of the horses received a Johns. Cas. death wound during the voyage. The damages so received, ^^- as they existed at the termination of the voyage, are a proper Thompson ^* subject of retribution. The subsequent death of the horse is Mil. 20. Wes- put wholly out of view. I am of opinion that the assured are ^^^\- ^''t- ^"^ entitled to recover, and to the full value of the horse.' And ^IJ'^^^F'' such was the opinion of the court.(3) A ship was delayed to repair sea-damage which was covered A detention of by the policy, and Avhile so delayed, was arrested by a tempo- the ship that rary embargo whereby she was detained until after the risk ter- ^°"l"^^"ced •ii.i- 111 11-11/- !• dnnns; the mmated ; the msurers were held not to be liable for the loss ac- risk continues cruing by this detention subsequently to the termination of the "ntii after the risk.(4) >"'sk expires. But in case of the seizure of a ship during the risk, and its The ship is condemnation after the termination of the risk, the insurers were seized before, held to be liable for a total loss, for the seizure in itself consti- ^^ condemn- tuted such a loss. The subsequent release of the ship might risk end?. have taken away the right of abandonment, but as the ship was 292 Risks Covered. Chap. XIII. (l)Dorr. V. N. E. Mar. Ins. Co. 11 Mass. Rep. 1. A ship is with- in a hostile embargo dur- ing the risk, but not actu- ally taken possession of until after the termination of the risk. A person whose life is insured is at sea ; and not heard from af- ter the termi- nation of the risk. A ship at sea is not heard from after the expiration of the risk. not released, it was held that the right to abandon subsisted after the risk had ceased.(l) 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. It seems that she was not actually taken possession of under the embargo until after the expiration of the twenty-four hours, but she had been in the power of the officers of the French govern- ment from the time of her arrival. Lord Kenyon instructed the jury, that the loss happened immediately on the vessel's ar- riving within the operation of the embargo, and so before the expiration of the risk.(2) A life being insured from the 30th of January 1772, to the SOth of the same month in 1778, the person whose life was in- sured was at sea towards the conclusion of this period, and not being heard of afterwards, was presumed to have perished, but it did not appear whether he was lost before or after the thir- tieth of January 1778. It was a question for the jury to decide, considering all the circumstances, whether he perished within the time of the risk.(3) The question whether the loss happened within the period of the risk, was determined in the same manner, where a ship, in- sured for a certain time, was at sea, and not heard from after the expiration of the time.(4) (2) Minett r. Anderson, Park, 55. Peake, 211. (3) Patterson f. Mack, Marsh. 781. (4) Brown v. Neilson, 1 Caines, 525. Risk of con- traband trade. The excep- tion of illicit and contra- band trade extend* only to the goods insured. Section 16. Risks Excepted. A policy including only a part of the usual risks, is often made in the common form, and then the excepted risks are ex- pressly specified, by inserting that the insurance is to be ' free from,' or ' warranted against,' certain risks ; or some other equi- valent provision is inserted. Under the exception of all risks on account of ' trade in arti- cles contraband of war,' if the whole or a part of the goods in- sured are articles contraband of war, and a loss takes place in consequence, the insurers are not liable for such loss. (a) The exception of the risk of ' illicit and prohibited trade,' as well as of trade in articles contraband of war, relates to the goods insured in the policy, and not to other goods shipped by the same vessel. Where the owner of the vessel insured goods with this exception, and at the same time knew that illicit goods were shipped for the same voyage by other persons, Avhicli circumstance was also known to the underwriter, Chief .Tustice Lewis, in giving the opinion of the court, said, 'With a knowledge of this fact the underwriters subscribed the policy, he took the risk of all the consequences that might result to the («) Johnston v. Ludlow, 2 Johns. Cas. 481 ; Laing- v. Un. Ins. Co. 2 Johns. Cas. 171,487. Tlio excrplion of illicit and contraband trade is .said to have Ix^on iiilrodiicod into policios in Philadelphia in 1778. Si.iilli V. D.'l. biM. Co. :5 Serf,'. & Kawie, 82. Sect. 16. Risks Excepted, 293 lawful from the illicit goods, the warranty extending to the goods (i) Bowne v. only which were the subject of the policy.'(l) And it seems Shaw, i that the policy will not be made void, in consequence of the 9i^.'"^'^' p ^^* shipment of illicit goods by other persons than the assured not \J^ i^^Gard- having made known to the underwriters, though it is known to ner, i Caines, the assured.(2) 492. It was held in New York that the insurers were not discharg- The seizure of ed under this exception, from the payment of a loss of the car- the goods at go by an arbitrary seizure and condemnation at Antwerp, the the port of port of destination, when it was in the jurisdiction of the French, jjgj^j ^^^ ^^\^, The court considered whether there had in fact been any illicit self to be a trade, and it not appearing that there had been any, nor that proof of illicit the goods were condemned for this cause, the insurers were held *''^'^®* to be liable.(3) Jt is not distinctly decided in the preceding case that the insu- Whether the rers are liable under this exception for a loss by seizure, under ''J^urer is ha- a pretence of illicit trade, when in fact no such trade has been seizure under^ carried on or attempted. It has however been decided in Mas- pretence of il- sachusetts, that under an exception of ' illicit trade with the I'^it trade Spaniards,' a seizure, ' whether for arrival on the coast, or for r„ ^^ f^^ an act ot trarhc, are alike withm the exception. A seizure to been no at- prevent traffic, as well as on suspicion of trafficing, are within tempt to car- the exception, as much so as the most regular confiscation for jyoi^such trafficing illicitly. The exception extends to every seizure and detention as a means of enforcing the prohibitions of trade.'(4) (^) Gracie v. A case has occurred in the Supreme Court of the United ins^(^*"^^3 Slates, upon the exception of 'illicit trade with the Portuguese,' Johns. 161. in one policy, and of ' seizure by the Portuguese for illicit trade,' (4) Higginson in another, in regard to which exceptions the court said, the ^'i^'^^'^p^' * words ought to receive the same construction; and each ex- io4. ^Seealso ception is substantially the same.' The court considered it to Smith and be proved, that ' this illicit trade was the sole and avowed object Buchanan v. of the voyage.' The supercargo did carry on illicit trade at wharr^ ^ Rio Janeiro, to a small amount ; and an attempt was made to put Dig. p, 324. into Para for the same purpose, which was prevented by a seiz- h. t. 63. ure and condemnation of the ship and cargo. Supposing this seizure to have been made for the attempt merely, it was con- tended not to be within the exception. But Chief Justice Mar- shall gave the opinion of the court, that, ' If the loss was occa- ,r^ p, sioned by attempting an illicit trade with the Portuguese ; if piubbart 2 '' an actual offence was committed against the laws of that nation, Cranch, 187. and the property was condemned on that account, the case came (^) ^jnith v. within the exception.' But he said that ' the exclusion of illicit 3 Serg^fe °' trade, is only an exclusion of that risk to which the trade is by Rawie, 82; law exposed.'(6) Faudel t. It has been held in other cases that the prohibition, to brine: ^^'^I'o^"'* « the case within the exception, must be legal and such as the Rawie 29. government has a right to impose ;(6) but it may be subsequent (7) Smiths to the commencement of the risk under the policy.(7) It seems, Buchanan v. by these opinions, that if the property is condemned, or seized Wharrbi-^ and confiscated, on pretence of illicit trade, when in fact no illicit 324. h. t. n,' trade had been carried on or attempted, the insurers arc liable 64. 294 Risks Covered. Chap. XIIL for the loss, notwithstanding the exception ; and this accords with the decision in New Yorli, above cited.(a) Under the exception of ' loss on account of trade in articles contraband of war,' it appeared that the British Vice-admiralty Judge, at New Providence, had condemned some blocks of tin and boxes of tin plates, as being articles contraband of war. It was provided in the policy that the parties should not be con- cluded by the judgment of a foreign court. It was held in New York that the tin l^locks and plates were not contraband (1) Johnston of war ; and the court said, ' it cannot be the intention to throw f. Ludlow, 1 the loss upon the assured wh^n there could be no fault in him — Caines, xxix. ^yhcn no illicit trade or contral)and existed in fact — merely be- aTohn^ Cas! ^ause a pretence of that kind is set up to cloak the condemna- 481. tion.'(l) In a case upon a policy containing the same exception, where the vessel was refused permission to enter at the port of desti- nation on account of an alleged insufficiency of the papers, Livingston, J. giving the opinion of the court, said, ' A denial of entry at the port of destination appears to me, after consid- erable reflection and many doubts, not to be a loss within this policy which contains an agreement, that, for a seizure or de- tention on account of prohibited trade, there shall be no remedy. • M 1 r How can the underwriters, who do not assume the greater risk Co. 1 Johns, of seizure, be answerable for a smaller one proceeding from the 181. same cause ?'(2) It does not distinctly appear whether the (3)SeeGra- court considered the fact to have been proved that the entry Ins. Co. Con- ^^'^^ prohibited by the lazvs of the place, but this rather seems to dy's Marsh, have been assumed, for the judge speaks of the trade as ' pro- 346. n. hibited.'{3) 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 con- demned ' on the ground of a false declaration by the captain,' that he had not gone to England on the voyage. The court said, ' We have nothing to do with the pretexts for the condem- nation so long as the loss was not for an illicit or prohibited trade. Going to Cherbourg, after having touched at Plymouth, was going to a prohibited port under the Berlin decree, but the mere entry into that port was not o breach of the warranty ; [?. c. did not come within the excepuon.] If there had been no seizure, and the ship had been burnt in the harbour, before the goods were landed, the insurers would undoubtedly have been liable. Seizure for trading, or attempting to trade, contrary (4) Mumfonl j^ ^j^^. Berlin decree, would have brought the case within the Co v'johna? exception. If the loss did not arise from seizure for a prohi- 449. bited trade, the insurer is responsible.'(4) Mr. .Justice Washington was of opinion, that to bring a case within this exception, ' both a seizure and an illicit trade must ((/) Whf'thor tlio jn(lt(inr'iit of a foreign court is conclusive of the fact ol illicit Iradc, is a (lifTcront »|uostion. If (lie forelcfn judgment is conclusive, it makes a case iu which the fact of illicit trade is proved. Sect. 16. Risks Excepted. 295 concur.'(l) The supreme court of Pennsylvania has given a (i) Graham similar opinion.(2) «• Phoen. Ins. It was held in the same state that if the circumstance, -whereby ^°- ^°"^y'® ,11 ) M • 1 r -1 Marsh. 346. n. the trade became prohibited, was a consequence ol a peril y^ ,. . against which the underwriters insured, they were answerable ^^^ prohibi- notwithstanding the exception ; as in the case of a vessel prohi- tion being a bited entry at Antwerp in consequence of her having been dc- consequence tained by a British ship, which detention was insured a£rainst.(3) ^,„L^!" ;'"♦ rt T ^ \ •! • • r i /• i • • sured agaiDst, iJut II the prohibition oi an entry at the port oi destination or not. is not considered a consequence of some peril insured against, then the insurers arc not liable for a loss of the voyage by such prohibition.(4) It has been held that if permission be given by the officers of Unauthorized government at a foreign port, without authority, to trade in vio- permission of lation of the laws of the place, such permission will not take *^^ ^^^'^^ ^J the trade out of the exception of ' prohibited trade.' Under a the°port. policy on ten hogsheads of sugar from Antigua to New York, ' free from prohibited trade :' it appeared that the exportation [f^, "-J"'**^ *'• r r^ A • 111 ^ -11 -11 L)el. Ins. Co. OI sugars from Antigua had been permitted by a special law ; 3 ggj-g^ ^ but after the arrival of the vessel, and before she was loaded, Rawie, 82. the President of Antigua received instructions that this permis- (p) Savage v. sion was revoked. He however supposed that the permission gin^^^os^' would extend to the particular case, notwithstanding the revoca- (4) Krum- tion, and accordingly allowed the sugars in question to be ex- bhaar v. ported. The property was captured during the voyage, and ^^^' ^^^' ^°' condemned as having been exported contrary to law. The Rawie' 281. court said, ' The loss was occasioned by a peril not within the policy ; the seizure and condemnation were on account of pro- (5) Tucker, nibited trade. The advice of the President was unautho- '• Juh^i 1 rized.'(5) John*. 20. Under the exception of risk on account of the blockade of Exception of the port of destination, questions have arisen similar to those the risk of respecting the exception of prohibited trade, namely, whether yj"' u**'^^* the insurers are exempted only from losses arising from an ac- tual violation of blockade, or from seizures, or other losses tak- ing place on account of a pretended and alleged violation, when in fact no blockade has been violated. A ship and cargo were insured in a policy, whereby the insurers took ' no risk of block- aded port;' and the property was captured and condemned for an alleged violation of the blockade of St. Lucas. Chief Jus- tice Kent, giving the opinion of the court, said, ' From what ap- pears in this case the offence [viz. violation of blockade] docs not seem to have been made out ; and judging from what appears before us, I should deem the capture unlawful. 1 am aware, however, that we are not prepared to judge of its legality. But - 1 think it sufficient for the insurers to show that the loss arose by reason of the blockade, and that v/e are not to inquire whether the belligerent was strictly justifiable in condemning the pro- perty for a violation of blockade. If the insurer is to take ' no risk,' he must be discharged from every risk arising from a blockaded port. The risk may arise from illegal, as well as le- gal captures, founded on the fact of the blockade.' But he said 296 Risks Covered. Chap. XIII. (1) Radcliff the existence of the blockade must be made out ; that is, the in- V. Unit. Ins. surers are answerable for a loss by capture and condemnation 38 9 j'hn^' ^^^ ^^^ supposed violation of a blockade, which did not exist.(l) 277^ " A ship was insured ' to one or more ports in the West Indies c -T f , o and thence to Norfolk, against all risks, blockaded ports and bailing tor a . . , , ,' „y, -i i <• ^^ i • i blockaded Hispaniola excepted.' 1 he master sailed lor Curracjoa, which port not was blockaded at the time, but he had no knowledge of the block- knowing it to g^jjg yj^f j[ i^Q ^ygj. ^varned off", upon which he sailed for Norfolk, and was captured by a French privateer. Chief Justice Mar- shall gave the opinion of the court. He said, ' A voyage to Hispaniola was not insured. The assured has notice of this, and if he sail for Hispaniola, the voyage is entirely at his own risk. Other ports are within the voyage insured, if they be not blockaded. It is their character as blockaded ports that ex- cludes them from the insurance. It is the risk attending this character which is excepted, which is the risk incurred by breaking the blockade. Sailing for Curra^oa knowing it to be blockaded, would have incurred this risk ; but sailing for that ti. Fry^^°^ port without such knowledge, did not incur it.' The loss was Cranch, 335. accordingly held to be within the policy.(2) From the preceding cases it seems to be a matter of some doubt whether an exception of the risk of illicit trade, or that arising from blockade, excludes the loss arising from a pretend- ed iUicit trade or violation of blockade, when there has in fact been no such trade or violation. Goods known ^t has been held that, notwithstanding the exception of the to be prohi- risk of prohibited trade, if goods, specifically described iii the ^•fi^^iT^-*^^' pohc}^, are insured from a port where the exportation of them is red'^undenhis Universally known to be prohibited, the exception will not be exception. applicable to them. A policy was made on specie, among other things, from Matanzas and other ports of the West Indies to New York. The ship on her return from another Spanish port, put into Matanzas in distress, where the master was compelled to land the specie and not allowed to take it away, the exporta- tion of it not being allowed by the Spanish laws. The insurers ih\. I^ns^Co. ^vere held to be liable, for they were bound to know that by Condy's the general regulations of the Spanish colonies, specie was pro- Marsh. 346. n. hibited from being ex])ortcd.(3) But it does not appear why IS' F Mar' ^^^^ knowledge, on the part of the insurers, that the trade was Ins. Co. 14 prohibited, proved conclusively and against the express provi- Mass. Rep. sions of the policy, that the risk arising from the prohibition ^^- was assumed by the insurers. Exception of It being provided in a policy that the insurers were not to be loss by the i \[^\^\q f^p a,^y jqj^jj arising from the violation of cxislim regu- violalinn nf , . . < , " , , . . i i i exiatingregu- J^'tions restricting neutral commerce; the provision was held to lations. 'M'p'j "^"^J ^^ regulations ' in force at the time of executing the policy.'(4) Exception of Under a policy upon the cargo of a British ship from London to Beizun- in the any port or ports, ' free from capture and seizure in her port or ''h*^' ?'!''"*' )>orls of (lischiirge ;' the shi() aiuJ cai'go were seized in the river ^^* .laluic fifteen miles below Varel, whei'c (he ship was lying olT and on, waiting for directions from the su|HM*cargo who had gone uj) \i) Varcl foi' instructions from the consignees, at what place to Sect. 16. Risks Excepted. 207 land the cargo. The country was under the dominion of the French government, and a French force was stationed there to prevent intercourse with the EngHsh. Lord Ellenborough said, (}) Jarman v. ' The ship had gotten within what, in a general sense, and for Ea^/^^gg^^ g the purpose which the contracting parties had in view, was to c. 2'camp. * be considered the port of discharge.'(l) 615. Under a policy upon a cargo with the same exception, the ship and cargo were seized in the outer harbour of Fillau, which is also the harbour of Konigsbcrg, whither the goods were destined. The ship lay without the bar of the harbour, about two miles out towards the open sea, from the place where ships of similar burthen usually unload a part of their cargoes, to enable them to pass over the bar. On her coming to an- chor, the captain had gone ashore to report his ship, and to obtain permission to land his cargo, and to give directions in this respect; and had been ashore five or six days for this purpose before the seizure was made. Lord Ellenborough said, ' The parties knowing that the whole continent was in a state of actual or probable hostility to British commerce, their (2) Dalgleish meaning undoubtedly was, that the underwriters should not run East^^295' the risk of seizure in the elected place of discharge, wherever See also that might be.' Le Blanc, J. ' It seems to me that the ship be- Oom v. Tay- ing in the place which she had elected as the place to begin ^^^\^ \'f'"5' making her discharge, we must consider her as within her port hcAvr. Scott of discharge within the meaning of the policy.'(2) 3 Camp. 205. But in other cases this exception has received a construction Seizure -with- less favourable to the underwriters. A vessel was insured at in the head- and from Rotterdam to London, with liberty to touch at all lands which ports, ' free from capture in port.' The ship was captured mouth of the while at anchor at Ghoree Ghat, about a half of a mile from Gho- Maese. ree, in an open roadstead, within the headlands which form the mouth of the river Maese. Lord Ellenborough said, if you (3) Baring r. would protect yourself by the exception, ' you must show that Veaux, 2 the ship was within some port at the time of the capture. No c4)"Brown V witness has stated that the place where she lay was within the Tiemey, 1 port of Rotterdam, or of Ghoree, or within any other port.'(3) Taunt. 517. Under the exception of capture and seizure in port in a po- Seizure at the licy on the ship, the insurers were held to be liable for a loss by place where seizure in Fillau Roads, where vessels usually discharge a part ^I^'p^ usually of their cargoes for the purpose of going over the bar. The ofer me°b^T* court said, the ship was there ' as much at open sea as ever she of the har- had been. '(4) bour. Under a policy on goods ' free from capture and seizure in -pj^^ property the port of discharge ;' the intended port of discharge was Wis- is seized in mar, on approaching which the master learned that it was in the open sea possession of the French. He came to anchor in the open about three r -1 ,. tir- 1 r 1 miles Irom the sea about seven miles irom VVismar, and soon aiterwards some usual place of French soldiers came out from Wismar and took possession of discharging. the vessel. Ships usually discharge about four miles nearer to Wismar than the place where the vessel lay. It was held, though (5) Meiiish v. with some hesitation, that this was not a capture or seizure in Staniforth, 3 the port of discharge, and that the insurers were liable.(5) Taunt. 499, 38 298 Risks Covered. Chap. XIII. In case of a policy upon goods ' free from confiscation in the port of discharge ;' Avhile the ship was lying at anchor near Pillau, her intended port of discharge, and about three miles farther out than any place where ships ever begin to discharge ; she was seized by officers of the government then having juris- diction at Pillau, and afterwards confiscated together with the cargo. Chief Justice Mansfield said, that to bring the loss within the exception, ' the capture or confiscation must begin in (l)Levyr. the port of discharge;' whereas the capture was here made Vaughan, 4 without the port, and accordingly the insurers were held to be Taunt. 387. answerable.( 1 ) A ship being insured ' free from capture in her port of desti- nation,' which was Pillau, came to anchor over against that place on the outside of the bar, a full German mile farther out than any place where vessels ever begin to lighten their car- goes, for the purpose of going over the bar of the harbour ; where she was taken by some soldiers from Pillau. Chief Justice Mansfield said, ' I have no doubt the underwriters intend- (2) Keyser v. ed to protect themselves against the loss which has occurred, but Scott, 4 they have used terms which do not protect them. The place laiini. DDu. -^hgre the capture was made is in the open sea.'(2) Free from In the case of an insurance on goods ' free from confiscation confiscation \jy j}^g government in the port of discharge,' which was Pillau, overnment where the ship, while lying in the Roads, was boarded by Prus- at the port of sian soldiers from Pillau, and by Frenchmen from a French discharge. privateer, who disputed the right of possessing the prize, and this dispute was referred by the Prussian government to that of France, 'and decided by the court of prizes at Paris in fa- vour of the French captors, the insurers were held to be liable for the loss. Lord Ellenborough said, ' There was no confisca- tion, which must be an act done on the part of the government of the country where it takes place, and in some way beneficial (3) Levi V. fo that government.' Mr. Justice Grose said, ' The Prussian Aiinutt, 15 government did not confiscate, but abjured and renounced the East, 267. property.'(3) An exception A ship being insured against capture only, and ' free from of stisurt is seizure in any place under the jurisdiction of Napoleon, or any equivalent to po^ygp j^ alliance with him,' was taken by two French priva- oi capture. teers in a place under the jurisdiction of Holland, which was then in alliance with Napoleon. It was contended in behalf of the assured, that the term seizure was only applicable to the ar- resting and taking possession of a vessel on account of some /.NT,, , municipal rcfrulation. But the court said, 'It is not a strained Mur. Ins. Co. interpretation of the term seizure, to consider it as synonymous 11 Johns. 287. with capture.'(4) Kxccption of In a policy on a cargo from Philadelphia to St. Sebastian's, risks in })ort thc insurers stipulated to take ' no risk in port but sea-risk.' oih-| as where the ship is insured at a certain value, and the freight Hartford Ins. is insured in the same policy without a valuation ;(1) or where Co. 2 Conn, a part only of the goods insured in the same policy are valued. ^^P- ^^^• If the valuation be ii. tended to cover an illegal purpose it will The effect of be void itself, at least, if it does not make the whole contract so, '^ T^^j^j *i° as appears from the general principles already stated in relation cover a wa- to illegal contracts. (2) We have seen that wager policies are ger. prohibited by statute in Great Britain,(3) and that in Massachu- .^^ g^ ^ ^g setts wagering contracts in general are not considered as impos- (3) 19 Geo. li. ing any obligation on the parties.(4) Where a law exists, or a c. 37. doctrine prevails to this effect, a valuation of goods for the pur- (4)Supr.2. pose of evading it will not be sustained by courts, but is con- sidered as absolutely void. It was even insisted by the coun- sel in one case that every valued policy was a wagering con- tract, under the statute above mentioned, but the court did not seem to regard this objection to valued policies in general as of ^ much weight. Lord Mansfield said, however, ' If it should come out in proof, that a man had insured 2,000/. and had an interest on board to the value of a cable only, there never has been, and I believe there never will be, a determination, that by such an evasion the act of Parliament may be defeated. Where valued policies are used merely, as a cover to a wager, they would yiucker 2 *'* be considered as an evasion.'(5) Where wagering policies are Burr. 1171. 39 306 Amount of Insurable Interest. Chap. XIV (1) Haigh V. De La Cour, 3 Camp. 319. Fraudulent over-valua- tion. (2) Marshall r. Parker, 2 Camp. 69. See 12 Mass. Rep. 75. ■where Mr. Marshall's statement of this doctrine is recognised as law. See also 1 Emer. 264. c. 9. s. 2. 3 Caines, 16. (3) See the cases and au- thorities cited above, as to the effect of fraud. Also Shawe r. Felton, 2 East, 109 ; Mar. Ins. Co. v. Hodgson, 6 Cranch, 220; M'Nair r. Coulter, 4 Brown's P. C. 450 ; Millar, 255. Marine ordi- nances forbid over-valua- tion. A valuation fairly made, though high, is valid. (4) Weskett, art. valua- tion, n. 7. art. double insurance, n. 2 ; 1 Emer. 2G4. c. 9. s. 2 ; Cod. df; (Jom. J. 2. tit. 10. «. 1. a. 147. prohibited by positive statutes, an over-valuing with the inten- tion of both parties to violate the law would no doubt make the whole contract void ; but where they are not so prohibited, but are held, as in Massachusetts, to impose no legal obligation, it does not appear that an over-valuing for the purpose, in both parties, of combining a wager with an insurance, would make the insurance void, and prevent its covering the interest actual- ly at risk. If the goods have been fraudulently over-valued, the valua- tion is not binding. Where an over-valuation is fraudulently made, with the intention, on the part of the assured, of destroy- ing the property, for the purpose of recovering of the insu- rers the amount at which it is valued, such a fraudulent purpose will make the whole contract void. Goods worth 1,400/. being valued at 5,000/. the ship was run away with, and the goods ac- tually on board were disposed of by the supercargo. The loss was adjusted on the production by the assured of bills of lading, showing that they had shipped property to the amount of 5,000/. But it appeared that these bills of lading were fictitious, and the adjustment made upon the strength of them, was according- ly not binding. The assignees of the assured, who had become bankrupts, claimed for the 1,400/. ; Sir J. Mansfield said, ' If the bankrupts intended from the beginning to cheat the underwri- ters, the assignees can recover nothing. The fraud entirely vitiates the contract.'(l) It appears from other cases that a fraudulent valuation will be set aside,(2) and this is no more than the application to this agreement of a principle that is applicable to all contracts. But if the valuation be neither intended as a cover for a wa- ger, by both parties, nor fraudulently made by the assured, it is binding on the parties, in case it can be carried into effect ; and will, as between them, determine the value of the property .(3) And the circumstance of the property being valued very high has not in itself been held to be a sufficient proof of a wager, or of a fraudulent intention on the part of the assured. The ordinances of some countries have prohibited the over-valuing of property insured, and either made the valuation void, on this account, or the whole contract. (4) An over-valuation is said by Lord Mansfield to be contrary to the general policy of the marine law, and to the spirit of the act against gambling policies; a temptation to fraud, and a source of ahuse.(a) But it sufficiently appears from numerous cases that if the parties, without intending to wager, fairly agree to estimate the property at a high rate, their agreement will be valid. The amount will not be inquired into in such case, says Mr. Justice Yeatcs, ' unless the valuation is grossly enormous.'CO Some value must be proved, it is said,(c) since if no goods are at risk the policy never attaches. But it is uni- (rt) Hamilton v. Mcndes, 2 Burr. Bin. 206. (c) Marsh. 97. 1190. (6) Miner v. Tagerl, 3 Sect. 1. Valued Policies. 307 formly held that the valuation must be very excessive to raise any presumption against the contract on this account merely. Mr. Justice Gushing, giving the opinion of the court, in a case on a policy upon a vessel valued at 10,000 dollars, on which the ^^s Hodgson sum of 8,000 dollars was insured, said, ' If it appeared that her v. Mar. fns. actual worth were no more than 3,000 dollars, it would not ne- Co. 5 Cranch, cessarily avoid the contract, nor restrict the damages to that i,^?* ^^e also sum ; for she may, notwithstanding, have fairly cost her owners lar 3 Taunt. the whole amount of the valuation.'(l) 506. It often happens that expenses or profits are accruing, or ex- pected to accrue, on the property, which the assured wishes to cover, and for this purpose makes the valuation. Though the value at the commencement of the risk constitutes the amount of interest in an open policy, yet it is not necessary to suppose that the parties have this value in view in agreeing upon a va- luation. A valuation of goods which would be very high at the beginning of the risk, may be very low in a subsequent period of it, when great additional expenses have been incurred, in the transportation of them, or their proceeds have become more valuable by trade. A high valuation, therefore, affords of itself, very slight grounds of presumption against the intention of the assured. The value of a vessel is not so certain as that of goods, and The ship is cannot be so satisfactorily and exactly proved. Insurance on "^"^liy ^a- vessels is therefore commonly made by valued policies. For freight is fre- the same reason freight is usually valued, where the owner of quentiy so. the vessel is also owner of the cargo, and most frequently in other cases. If no part of the cargo is shipped by the owner of the vessel, the gross amount of freight is readily ascer- tained by the bills of lading ; but where the whole, or a part of the cargo, belongs to the owners of the vessel, or to the charter- ers, who are owners pj-o hac vice, the same uncertainty and diffi- culty occurs in proving the value of freight, as in proving that of the vessel. Goods are more frequently insured in open policies, since the Goods are not value is easily proved by the invoices, or by showing the price so generally current at the time. But if the goods are of a kind, the price current of which cannot be easily shown, or if the price has greatly changed, subsequently to the purchase of the goods, or if their value has been increased by transportation, insurance is often made upon them by a valued policy. In the case of a valued policy it is sufficient for the assured to The value prove that, while the property insured was at risk under the po- ^'^^'^ ^^^ ^e licy, it was lost by the perils insured against. He needs not a^yakied po!'^ to prove the value. Whereas, in an open policy, he must not licy. only prove that the property was exposed to the risks insured /o) Feise v. against, and that its loss was occasioned by them ; but he must Aguiiar, 3 also prove the value of the property.(2) Taunt. 506. But a valuation only affects the parties to it, and the same The same property may be valued differently in different policies, and property may each valuation will be valid as respects the parties to the con- ^^ differently tract of which it is a part. A ship being valued in one policy 308 Amount of Insurable Interest. Chap. XIV. valued in dif- at 6,000/., and another at 8,000/., and 6,000/. being paid on the ferent poii- latter policy, the underwriters on the former contended that, as ^^^^' the assured had been paid the sum at which the ship was va- lued in the policy subscribed by them, he could claim nothing of them. Lord Ellenborough said, ' The valuation is only con- (1) Bousfield elusive between the assured and the underwriters, without tak- !•. Barnes, 4 ing into consideration what had been transacted between the Camp. 228. assured and third persons.'(l) A case has occurred in Massachusetts on the same point. A vessel was insured at Calcutta, by a valued policy, under which an abandonment was made, and a total loss paid. The same vessel was insured in Boston in behalf of the same party in an open policy. The policy effected in Boston was prior in date. The assured demanded a loss of the Boston underwriters also ; at the same time proving the value of the vessel to exceed the valuation in the Calcutta policy. Chief Justice Parker, giving . the opinion of the court, said, ' The estimate of value made in r. DalPi's °" the foreign policy, is not binding upon either of the parties to Mass. Rep. this. The underwriter must be held to pay in the proportion 102, 103. that his subscription bears to the value of the ship as proved.'(2) The insurers in this policy were therefore liable to pay pre- cisely the same amount, as if the policy made at Calcutta had been an open instead of a valued one. This rule is general, that the underwriters, whether in an open or valued policy, pay precisely as if all prior insurances had been made by open po- licies; and their liability cannot be affected by a valuation made in a subsequent policy. Insurance of 40,000 dollars was made on coffee, ' valued at twenty-five cents per pound,' with the usual clause, that the in- surers were to be answerable only to the amount not covered by previous policies ; and an insurance had been previously ef- fected in Europe by an open policy on the whole cargo, includ- ing coffee, pepper, sugar, and saffron wood, to the amount of 155,555 dollars. It was contended on the part of the underwri- ters, that as all the pepper, sugar, and saffron wood, and a part of the coffee, was covered by the previous insurance, taking the whole cargo at prime cost, they were answerable only for the risk on the quantity of coffee not covered by the first policy. That is to say, in ascertaining the loss under this valued policy, * they were to estimate that part of the coffee covered by the prior policy, at prime cost, which being paid for by the previous underwriters was to be put out of the question, and then the underwriters in this policy were to pay for the excess accord- ing to the valuation. The assured contended, on the other hand, that in ascertaining what part of the cofiee had been insured in the previous policy, the pepper, sugar, and saffron wood, were to be estimated at jirirnc cost, liut the coflcc at twenty-five cents per pound, and that these underwriters were answerable for the amount of coffee not covered by this mode of calculation. The whole of the coffee must, they said, as between these parties, be estimated at twenty-five cents pei- jwund. And the court was of this opinion. Thf^y said, ' The whole of the collec is to be ^ Sect. 1. Valued Policies. 309 calculated at the valuation, because the parties have agreed on (i) Mintum that valuation, in reference to this policy. \l) f.Col. Ins. An open policy had been made on goatskins, to an amount I?"' ^^ Joi'"^- about sufficient to cover the prime cost, and the assured then (2) Kane v. had a policy effected on the same skins valued at fifty cents Com. Ins. Co, a piece. In settling the loss under this second policy the court ^ Johns. 176. decided that all the goatskins were to be estimated at fifty cents Mixtm^t,, each, and from the amount at that rate, was to be deducted the Phoen. Ins. amount for which the first underwriters were liable ; and the Co. Condy's difference was the amount of insurable interest as between the ^^"h}^^' 1 II- /^\ n- ; Whar- parties to the second poiicy.(2) ton's Dig. 339. Seven open policies being made on goods shipped in Russia; h. t. n. 202. the assured then effected an eighth policy on the same goods, (^) Pleasants '■ valuing the invoice ruble at forty cents ;' and then a ninth, va- ^^^ g^Cranch luing the ruble at forty-six cents. The court held that under 55. See also the eighth and ninth policies the valuation extended to the whole Murray v. of the goods, from the amount of which, at the rate of valuation p ^' ?h ii' in the policy, the sum previously insured was to be deducted. Law Joum. and the excess was the amount of insurable interest under each 16I. and Mr. of those policies.(3) ^"jj^'^^ , But it has been held in two cases that, where the real value rem*^krupon exceeds the valuation, the amount of a previous policy is to be that case, 8 deducted from the real value. A vessel worth 15,000 dollars Johns. 182. and valued in the policy at 12,000 dollars, had been bottomried \^] ™oTn* by the captain at sea before the policy was effected. If was a, Wharton's held that the amount of the bottomry bond was to be deducted Dig. 34l.h. t. from the 15,000 dollars.(4) 206. sup. Where the assured expects goods to be shipped, but does not know the kind or the amount, the policy is sometimes made on The value to goods ' to be thereafter declared and valued.' Under a policy ^^ declared in this form the declaration of the value, to make it a valued sured. policy, must be made by the assured before he has intelligence (5) Craufurd of a l0SS.(5) t. Hunter, 8 Under a policy in this form the clerk of the assured, by his "^^ ^- ^^' ^' order, wrote out and signed a specification of the interest with a T^^ declara- valuation, on a separate piece of paper, which he wafered to the must'be^made policy ; but it did not appear that this had been shown to the to the insurer underwriters before the loss was known. Lord Ellenborough before a loss. said, ' A declaration necessarily imports two parties, the person who makes it, and the person to whom it is made. How can I consider an uncommunicated instrument a declaration ? Had it been communicated to any person, or if it had been written on the policy, so that the party could not recede, perhaps that would have been sufficient. I allow that a declaration of inte- rest is no contract, and does not require the assent of the un- derwriters, but it must be communicated in such a manner that the assured cannot recede from it. Here there would have been no evidence that the instrument ever existed, if it had suit- ed the assured to destroy it.' And he at first doubted whether the policy could attach at all for want of a declaration, but on consideration, said, he had fully made up his mind that a policy in this form ' gives the assured a power, by duly declaring and 310 Amount of Insurable Interest. Chap. XIV. (1) Harraan i>. Kingston, 3 Camp. 150. A mistake in declaring va- lue may be corrected. (2) Robinson V. Touray, 3 Camp. 158. Whether an agreement to require no proof of inte- rest, is a va- luation. (3) Hemmen- Tvay V. Eaton, 13 Mass. Rep. 111. Valuation en- dorsed on the policy. (4) Harris v. Eagle Ins. Co. 5 Johns. 368. The valuation is of the inte- rest of the as- sured. (5) Feise v. Aguilar, 3 Taunt. 506. (C) Post V. PhoBn. Ins. Co. 10 John€. 79. In a policy on the voyage round ; the valuatioii of tint outward cargo is a va- luation of the proceeds. valuing, before the loss, to make it a valued policy ; but if the assured do not so declare and value, it is then an open policy.'(l) A declaration being made under a policy in this form on goods by the Tweende Venner, and Neptunus, through mistake, the goods intended to be declared on, and valued, having been shipped by the America ; Lord EUenborough said, ' If this was without fraud, and without prejudice to the underwriters, I think it might be corrected without their assent. It is the same as if a verbal message had been sent by the porter who had misde- livered ii.'(2) Where the policy contained a provision that, ' in case of loss no proof of property should be required,' it was contended in behalf of the assured that this provision was an agreement that the assured was interested to the amount insured. Chief Justice Parker, in giving the opinion of the court, said, ' Policies held to be valued have become so by virtue of certain words, which may be considered as technical; and they are well understood by all who concern themselves with commerce. It would be dangerous to give any other form of words that meaning, where any doubt may exist as to the intention to give them that ef- fect.'(3) In a policy against fire the sum of 10,000 dollars was insured ' on merchandise and utensils specified on the back hereof.' The following endorsement was made on the policy, namely, ' 380 kegs of tobacco, worth 9,600 dollars.' The court said, ' this must be considered a valued policy so far as relates to the kegs of tobacco.'(4) The valuation of the goods is construed to be a valuation of the plaintiff's interest in them. Insurance being made on goods ' valued at 19,000/. of which the assured owned four-ninths, it was contended that the valuation was intended for the entire property, and accordingly that the interest of the assured was valued at four-ninth parts of that sum. But Sir James Mans- field said, ' \{ the assured are interested, is not that suflicient ? It has been held, again and again, that it is unnecessary to prove the amount of interest under a valued policy. We must take it that the value insured is the value of the assured's interest.'(5) And so where the policy was on one fourth of the vessel, va- lued at 5,500 dollars, and one fourth of the cargo, valued at 10,000 dollars; it was held to be a valuation of one-fourth part of each at those respective sums, which made the amount in- sured in the policy.(G) A question has occurred as to what shall be considered the proceeds of a cargo, and what shall be a valuation of the pro- ceeds. The sum of 1 1,000 dollars was insured on ' 100 bales of cotton, valued at 04 dollars each, and 25 tons of logwood va- lued at 80 dollars per ton, at and from Portsmouth, in New Hampshire, to one or more ports in Europe, one or more times, for the purpose of disposing of the outward and procuring a re- turn cargo ; and at and from thence to the vessel's port of dis- charge in the United States;' with a memorandum that, ' the risk was to attach to the jH-oceeds of the articles in the return Sect. 1. Valued Policies. 311 cargo.' It was not disputed that this would be a valuation of the return cargo purchased with the proceeds of the cotton and logwood on an actual sale. But on the arrival of the vessel at Cronstadt, the sale of these articles being dull, and the price low, the outward cargo was left in the hands of the consignees for sale, who provided and advanced a return cargo on the ac- count and credit of the assured. The underwriters insisted that this cargo was not the proceeds of the cotton and logwood, or if it was, the valuation did not apply to it. Chief Justice Parker, in giving the opinion of the court, said, ' In a liberal sense of the words of the memorandum, the return cargo was the pro- ceeds of the outward, for without the latter the former would not probably have been procured. The underwriter took the risk of any property that might be substituted for that which was carried out.' He said, the construction of the policy was the same as if the insurance had been on the cotton and log- wood, valued as in the policy, and on the proceeds of them. ' Up- /in jj on such a reading there could be no doubt that the valuation v. Gray, 12 would apply as well to the proceeds, as to the merchandise spe- Mass. Rep. cified.'(]) But to admit of this construction, the return cargo J^- ought certainly in such case to be equal to what would have Bowne ^2'^ ^' been the amount of the actual sales of the outward cargo. Caines, 30. The insurance being from Jeremie, in the West Indies, to New . , ,. ■IT- 1 rr n 1 1 1 ^ • ^ valuation lork, onconee, valued at two cents per pound ;' a question was at a certain raised whether the French pound, in use at Jeremie, and in rate per which the invoice was made out, or the American pound, was po"nd, means meant in the policy ; and the court held it to be the American ^^e place pound.(2) where the po- A valuation of goods is said to fix the prime cost,(3) but ^'cy is made. wherever this description is given of it, the meaning appears to In -what be that it fixes the amount of insurable interest. Lawrence, J. ^^^^e a valu- says, it is ' the practice of binding parties as to the amount of ^^'^^ the^ their interest. \4) And it is generally mentioned by judges as prime cost. having this effect. It certainly is not limited to determining merely what shall be considered the original price of the goods. 1^15 ^VIV m 1 r . • 1 X 1 11 • ' • 1 • 1167. 1171 ; ere goods 01 great weight or bulk, in proportion to their va- 1 Johns. 433 ; lue, are purchased in an inland place, the transportation, storage, 5 Johns. 368. the commissions of agents, export duties, and other expenses, ('*) ^ ^^^*» before they are shipped, may amount to more than the price originally given. But it has never been pretended that these expenses are not included in a valuation, whether made in the gross of all property insured, or at any particular rate, at so much the pound, bale, ruble, franc, &:c. This is conformable to the common understanding of prime cost, if this be supposed to be the subject of valuation ; for goods are said to be sold at prime cost, when the vender is only reimbursed the price he gave, and all his expenses. As a valuation is made for the purpose of fixing the amount Whether a of insurable interest, and as the premium is always a part of valuation in- that interest, it would seem to be the more obvious construction ^^^^^.^ ^^^ of the valuation to consider it as including the premium, unless the contrary appears from the manner of valuing, or from some 312 Amount of Insurable Interest. Chap. XIV. (1) Ogden r. Col. Ins. Co. 10 Johns. 273. (2) Mayo v. Maine F. & M. Ins. Co. 12 Mass. Rep. 259. A valuation at so much for the franc, is held not to include the premium. (3) Ogden v. Col. Ins. Co. 10 Johns. 27.3. (4) Minturn f. Col. Ins. Co. 10 Johns. 75. And so it was h< Id of a va- luation at 90 much per pf)uiid. Wh^lh'T Ihc valuatifxi is Opened in Other part of the poHcy. If goods are valued at so much in the lump, the valuation is generally considered to include the premium. This appears to have been taken for granted by the parties and the court, in a case which occui*red in New York ;(1) and so it seems to be generally understood by underwriters. Otherwise the assured might be surprised in finding himself lia- ble for a part of partial losses, against which he might suppose himself to be fully insured. Where the owner of one third part of a vessel, the whole of which was valued in the policy at 18,000 dollars, procured in- surance to the amount of 9,000 dollars, at a premium of forty- five per cent, it was contended by the insurers that the va- luation included the premium, and accordingly that only the sum of 6,000 dollars could be recovered in a total loss ; though they admitted that the vessel was actually worth 18,000 dollars, and accordingly that the insurable interest of the as- sured amounted to about the sum insured in the policy. Chief Justice Parker, giving the opinion of the court, said, ' When it is not expressed that the value stipulated is exclusive or inclu- sive of premium, and a larger sum is insured than the actual value of the property, there seems to be a fair presumption that the surplus value is put to the account of premium.XS) This was permitting the assured to go out of the contract, that is, to prove the actual value of the subject, in order to put a con- struction upon the valuation, and show that it was intended to apply to only a part of the insurable interest. It is probably owing to this decision that an entire valuation of the whole sub- ject is considered by some persons as excluding the premium. This does not however seem to be a necessary inference from the decision, and in other places insurers consider such a valua- tion as generally including the premium. There is nothing in the above case inconsistent with such an opinion. The decision is, that the facts of the case showed that the premium was not intended to be included in the valuation. Under a policy on goods, ' valued at eighteen francs, valued at four dollars and forty-four cents,' it was held that the insurable interest was to be computed by adding the premium to the cost, reckoning eighteen francs of the invoice price at four dollars and forty-four cents. The court said, ' This is undoubtedly an open policy. There is no valuation of the goods insured. It was an ascertainment merely of the value of francs, and by no means dispensed with the necessity of showing the value of the goods on board. It follows then that the insured had a right to add the premium of insurance as a part of his insurable inte- rcst.'(3) Where coficc was valued at a certain rate per pound, both parlies agreed in adding the premium to the valuation to make the amount of insurable interest; and no question was made in regard to the correctness of this mode of computation.(4) Though it would seem from the preceding cases that a valua- tion of the goods makes the case the same as if the goods had actually cost the amount at which they are valued, yet if we Sect. 1. Valued Policies. 313 are to understand as literally accurate, what has been said in a caseofave- few instances, it is otherwise. rage. Lord Mansfield is cited as having said,' an average loss opens /jn Erasmui the policy. 1 will give you the origin of this custom. It was v. Banks, in a case(l) where Lord C. J. Lee said, valuation at the sum in- Mich. 21. surcd is an estoppel in case of a total loss, but not so in an ave- citTd 2 kast rage loss only, in 1747, the same point came again before the 113. court, and was so determined. '(^) (2) Shawe v. Upon the same point, Scwall, J. giving the opinion of the p*'^*.^",'^ court in Massachusetts, says, ' In valued policies the value is un- /3\ ciark'r. derstood to be settled without further proof only in the event of Unit. Mar. total loss, and not in the adjustment of a partial loss, whether ^ ^- '°s- ^°- general or particular.'(3) Wesk;ett(4) supposes the case of a 370.^^^' ^^' vessel worth 1,500/. and valued at 1,000/. on which a loss of (4) Valua- 400/. accrues, and says, ' now this 400/. ought to be borne by tion, n. 10. the real value of 1,500/. making 26/. 135. Ad. per cent, and not by 1,000/., the nominal value, which would make 40 per cent; and yet it is certain that averages on ships undervalued, are very often paid by this latter and erroneous calculation ; whereas, in case of average, whether on ship, goods, or freight, the policy ought to be opened if there be an undervaluation.' Magens says, ' It is not sufficient to make a valuation in the lump, because it would only serve in a total loss; but to make a valuation of service, where goods are damaged or partly lost, the policy must express what particular goods they were, and /^s y^^ ^ their value by the piece, pound, yard, &c.'(5) He accordingly p. 35. s. 34. supposes the only reason for opening the policy, in case of a partial loss, to be the impossibility of applying the valuation in adjusting such a loss. But it will appear in the sequel that a partial loss may be adjusted upon the basis of the valuation. Insurance was made on sugars, valued at 30/. per hogshead. The policy which was probably higher than the invoice price, as it was the ^°^ opened m price at which the assured limited his agent in the sales at Ham- susjars '^valu-'^ burg, the sugars having been insured from the West Indies to ed at so much that place, and, consequently, all the freight, besides other ex- per hogshead. penses, had accumulated upon the invoice price. The sugars (6) Lewis r. had been damaged by sea-water about seventeen per cent ; and jl"^^^],^^ Lord Mansfield and the other judges decided, that the under- /7^ Tunno' writers must pay seventeen per cent of the amount at which r. Edwards, they were va]ued.(6) 12 East, 488. Under a policy on goods, valued at 1,500/., which cost the as- ^ partial loss sured, including charges, 1,443/. ; half of the goods were lost. °ue|°(''^f/^" The court decided that the underwriters should pay half of the lump, adjust- sum at which they were valued, and no question was made, ed according whether the policy was to be opened because it was a partial *? ^^^ vaiua- loss.(7) Coffee was insured and valued at 3,000/., the invoice price of which was 2,720/. A partial loss occurred, and neither ^^. Col. In«. Co. 3 Ciiines, '13. Mr. Justice Wasbing-ton considered the Sect. 2. Open Policies. 325 rest on freight will depend on the contract between the owners and shippers, but where the same party owns ship and cargo, he may insure freight, the amount or value of which will be the (i) 15 East. price usually given between the same ports. ^~4. The amount of interest in freight, as in ship or goods, is the The amount same for any part, or for the whole of a passage.(l) The of interest in assured must therefore, in order to cover his interest, insure ll*!!,^]^!- '^ ^^'^ 1 r 11 I 1 • r 1 same lor a the same amount tor any part, that he would msure tor the part that it is whole voyage from the port of loading to that of discharge. for the whole The protit made on the outward voyage is an additional in- "voyage. surable interest on the goods, and may be insured in a new The amount open policy on the homeward cargo, for it has now in fact be- ^l-e'ased'^b^ '"' come goods.(2) profit. If a policy on profits, without any express valuation, be an jn^vhatway open policy, and not one in which the interest of the assured is the amount of implicitly valued at the amount insured; that is, if there be interest in any open policy on profits, the only way of ascertaining the P"^?^^*^ .'^ interest is by showing what profit would have been made, had no disaster happened from the perils in the policy. But (2) Val. h. t. if the rule adopted in New York be the true one, namely, ^' g ^' ^ "^^'^* that in a policy on profits, the profits are valued at the ivvKim /■.' amount insured, by the act of making the policy ; the only Fhoen. Ins. question will be, whether the whole of the goods were at risk, ^°",^°"^^'* of which the profits were insured. If the sum of 1,000 dollars 152. n! is insured on ten bales of merchandise, and this is considered to be in effect a valuation of the profits at that sum, and only five bales are put at risk, the sum insured will be one half of that named in the policy. The amount of a consignee's insurable interest, distinct from Amount of iu- that of his principal, is the amount for which he has a lien on terestin com- the goods; resembling very much the interest of a mortgagee, missions. or lender at respondentia. In a policy on a life, if the interest be certain, as a debt, the Amount of in- amount may be ascertained in the usual w^ay;(3) but if it is an terestin a life, indefinite interest, as dependence for support, the policy, though open in form, Avould probably be considered a valued policy, in which the interest was valued at the sum insured. In reinsurance the amount of interest is the sum insured in the Amount of m- original policy, with the addition of the premium of reinsurance, terestin rein- unless the original premium is to be deducted. Valin(4) is of surance. opinion that this deduction is to be made. Emerigon,(5) on the (3) Statute 14 contrary, thinks the original premium is not to be deducted in ^^°- '^'\, estimating the amount of interest for reinsurance. This mode of Gods'aU v ' computing the interest makes the reassured a gainer by a total loss, Boldero, 9 East, 72. amount of interest to be the net freight. M'Gregor v. Ins. Co. of ("l) ^om- 2. Penn. Condy's Marsh. 93. n. And in the same case evidence was Sn " ^' given of a custom in Philadelphia to consider two thirds of the gross (^\ (oj„, 2. freight as the amount of insurable interest. S. C. Wharton"'s Dig. p. 249. c. 8. p. 338. h. t. n. 138. And it seems that the court was of opinion that s. 14. the contract might under some circumstances be afTectcd by such a custom. 326 Amount of Insurable Interest. Cha]). XIV. to the amount of the premium on the original policy ; which is inconsistent with the general principle, that the interest is to be so computed under an open policy, that in case of total loss the (i;Supr.42. assured shall be exactly indemnified. Amount of in- The lender in bottomry or respondentia, has an interest to the terestinbot- amount of the loan,(l) and the borrower may insure the excess tomry. q|- ^^^ value of the property over that amount.(2) Or if the (2) Supr. 43. lender takes only a particular risk, the borroAver has an insurable SmitlfT '' interest in the whole as to other risks. The ordinance of Ham- Caine'sfi ; S. ^urg allowed insurance by the lender, ' to the full amount of C. 2 Caines' principal, interest, and premium.'(3) The French law prohibits (sTtit 9^'a ^ ^'^^ insurance of the marine interest,(4) upon the same principle 2 Mag'. 225.~' probably on which it prohibits the insurance of freight and pro- No. 930. fits. (4) Cod. de t. °io. s'. Y. Section 3. Clause as to Prior Insurances. No. 158. Clause relat- American policies contain a provision that ' if the assured ing to prior in- have made any other insurance upon the subject, prior in date, surance. ^j^^ underwriters shall be answerable only for so much as the (5) Kemble amount of such prior insurance may be deficient towards cover- Cain°es^75. '"S ^^^^ property.' Under this provision the amount of interest (6) Col. Ins. in respect to a subsequent policy against the same risks, is the Co. V. Lynch, excess of the value over the amount insured by the previous 233^° p"eters po'^cies. But it is of importance to distinguish whether the po- V. Del. Ins. Hcies are in favour of the same party and against the same Co. 5 Serg, & risks ;(6) since making an insurance against one peril, with the w^H^''^-^'^' ^^^"^^ ^^ ^o prior policies, does not diminish the interest as to Hortor 4 other perils ; although the property is insured to its full value Bin. 539; against capture only, the assured has still the same amount of Perkins v. N. interest to be insured against perils of the seas. Co 12^m"ss "^"^ ^^ ^^^'^ subsequent policy contain no provision in respect Rep. o]4. "" to prior insurance, the amount of insurable interest for such po- (7) Davis V. licy will be the same as for the first, for the assured may insure p '^i!^a')4 again and again the same property against the same risks, if he lloirers ?•. Da- ^^''^ P'^J ^^^^ premiums. But he can recover only one indemnity ; vis," Park, this lic may recover of the first or subsequent underwriters, and 423; Craig r. thosc who pay the loss may demand a proportionable contribu- AV^'^'^^^°-('!^\ tion from the other insurers. The difiercnt underwriters are by 4Ycates, 161; , . , ■ r i i /-x nip • Casar. Disc, ^h'^ means made sureties lor each other.(/) Ihis was one rea- 1. n. 91 ; son for introducing the clause res]')ccting prior insurances. (o) Godin V. Another advantage resulting from this clause is, that it saves the Co.'i I3urr. assured from paying more than one premium for the same risk AiiO; Thurs- on the samc insurable interest. ton r. Kocii, Jt has been held that in determining which is the prior insu- J A ' '* ranee under tliis provision, it may be proved that a policy was and Apn. -i i i i • i-,v i r .i ." r •- jtxxii. subscribed by an underwriter on a dillci-ent clay ii-nni tluit oi its jV policy made date.(/j) It may also be ])rovcd which of two policies, made on on a diifercnt the saiiic day, was subscribed at an earlier hour. But if two day from ita dato. Two , . . ^ ^ l{;iwlf., .17,0. (/;) Lcc v. Mass. F. k M. Ins. Co. 6 iiolicifs made ,, ^ ■' ,, , _ ' ^ ' j.l the same Ma«S- ^^ep. 200. time. Sect. 4. Increase and Diminution of the Interest. 327 policies containing this clause are made al the same time in the (i) Potter r. day, so that it cannot be distinguished which was first subscrib- ^^l^r. Ins. Co. ed, the construction of them is the same as if they did not con- ^: ^; V',^' i .'.,., •' Khode Island, tarn this clause.(l) june, 1822. 2 Under this clause the amount of interest to which a subse- Mason's Rep. quent policy applies, will depend on the amount insured in the *"• previous policies, and also upon the valuation in the subsequent The amount policy. A cargo valued in a prior policy at 12,000 dollars, the |° ^^uble-'"'^ amount insured ; was valued in a second policy at 27,500 dollars, quent policy Though the whole cargo was insured in the first policy, yet depends upon there remained an insurable interest of 15,500 dollars for the Ju^7^^ V*^ "^ second, since as the property was valued in the second policy, this excess remained over the amount previously insured.(2) (2) M'Kim ^ -^ ^ ' V. Phccn. Ins. Co. Condy's Marsh. 152. n. Section 4. Increase and Diminution of the Interest. See also Bous- •^ field V. . Barnes, 4 The amount of the insurable interest is what the underwriters Camp. 228 ; would be liable to pay in a total loss of the whole subject insu- Higginson v. red. If a part of the goods insured, or on which profits are in- |^^'^' ^q^.^^^' sured, are entirely withdrawn from the perils insured against, MinturnV. and the risk upon such part has terminated, a total loss might Col. Ins. Co. take place upon the part of the subject at risk, and yet the ^ Johns. 75 -, amount of the insurable interest of the whole subject would not j^^^ (Jq g be recoverable. Johns. 176 ; In regard to goods it is a rule that if a specific part of the Pleasants v. subject insured is withdrawn from the risks insured against, the g ^mnch 55' interest is proportionably diminished. But this is not precisely _ the case in respect to the ship. The provisions and outfits con- of provisions, stitute, as we have seen, a part of the insurable interest in the kc. does not ship, but a specific part of this subject may be withdrawn from diminish the the perils insured against, by the consumption of the provisions, 1^°^^ or by the wear and tear and decay of the sails, rigging, &:c. and yet the amount of the insurable interest in the subject is not thereby diminished, as between the parties to the insurance. In case of a partial loss by the destruction of some specific The interest portion of the subject, if a total loss follow before the partial •"j-.^jl^L^ 1 1 111 -1 11 i- 1 1 • 1 ^^ dnninished loss on the goods has been paid, or the damage 01 the ship has -while damage been repaired, this partial loss is merged in the total loss. This remains unre- relates merely to the form of adjusting the loss ; as the sum to P^ir^^- be paid by the insurer is precisely the same, whether the claim is adjusted as two losses or one. Therefore if a specific part of the ship is v> ithdrawn from the risks insured against by the ope- ration of those risks, and not by wear and tear, decay, con- sumption of outfits, &;c. the amount of insurable interest is there- by diminished, as long as the damage remains unrepaired. In the case of whaling voyages the outfits constitute a very In -whaling considerable part of the insurable interest. In these voyages voyages a the outfits are considered to zcork into cargo ; that is, a certain ^are-o^'is sub- proportion of the cargo is considered as being substituted for the stitutcdfor outfits consumed. In these, as in other voyages, the consumption outfits cou- of outfits is not considered as diminishiuG: the amount of insu- ^"'"^'^- 328 Amount of Insurable Interest. Chap. XIV. the insurers or assured rable interest, but they are distinguished from other voyages in this respect, that a part of the cargo, when any is obtained, is substituted for the part of the outfits consumed. "VMiether a In some instances the amount of a loss is a new investment. new invest- "VYhere the damage of the ship has been repaired, or expenses ment to the i ■, • °j f r ,i i • i r • j . amount of an "^^'^ ^CQW mcurred on account of the ship, cargo, and freight, or average loss is either, this is an addition to the amount of capital at risk. This at the risk of raises the question whether the new investment is at the risk of the insurers or the assured. If a specific part of the goods is destroyed, it is paid for by the insurer, and the interest is there- by diminished, as between the parties, to that amount. And it does not appear by any decided case, nor is it intimated by any writer, that if the assured has on board an amount of goods equal in value to the sum insured, after a destruction of a spe- cific part of the goods insured, and the payment of a partial loss on that account, or, which is the same thing in effect, a lia- bility for such loss; or if he ship other goods equal in value to those lost; that the insurer is subsequently liable for the whole sum insured. On the contrary it may be safely assumed, that by the payment of a partial loss of this description the un- derwriter is discharged of his liability to that amount; since up- on a different principle he might be liable to two or more total losses under the same risk, which cannot be supposed. In respect to goods then, the contract of the insurer is not that he will indemnify the assured against all the losses accruing from the perils specified, upon the amount insured kept at risk during the period for which the contract is made. The contract is to maljt indemnity for the losses that would happen to specific goods to the amount insured, put at risk within the terms of the policy, and kept at risk during the period for which the insu- rance is made, or until they should be lost. The contract may contain provisions requiring a different construction, as where it is agreed to insure a certain amount for a long time; but it can- not be doubted that this is the construction to be put upon a po- licy upon goods made in the usual manner. The same question occurs in respect to the ship. Suppose a specific part of the ship to be destroyed, and to be rcj^laccd at the expense of the insurers ; is the insurable interest diminished by this amount as between the parties ? or are the insurers lia- ble for the amount originally insured in a subsequent total loss ? In case of the jiaymcnt of an average of 100/. for repairs, under a policy from London to Lisbon, in which the sum of 980/. is insured on a ship, that is afterwards totally lost during the risk, Mugens says, ' if the assured has charged the insurer in the account of the 100/. average, with a proportionable premium, then he is only liable to the payment of 880/. ; but otherwise he is answerable as well for the rcj)ai]-s of the ship, as for her safety till she an-ives at Lisl)on in a condilion to be worth 980/. ; con- scfjuently he ought to pay that full smn if she be lost on her said voy;ige to Lisbon.' He is of opinion, accordingly, that if, in adjusting the avernge, the assured receives of the underwri- ters a pieaiium for taking the risk of the new investment, the New invest- ment by re- pairs. Sect. 4. Increase and Diminution of the Interest. 329 amount of it is to bo deducted in adjusting a subsequent total loss. This implies that in the absence of any particular agree- ment or understanding, the insurers would still continue to be liable on the same amount subsequently to the payment of the partial loss. But the same writer intimates a doubt upon this subject, and seems to be rather inclined to the opinion that the assured ought to effect insurance on the new investment, and if he neglects to do this, the amount of the particular average ^ ^jj^ '^^^ should be deducted, that is, the assured should recover only for viii. No. Ii.'s. one entire total loss of the amount insured. (1) T. U. W. Lord Ellenborough, giving the opinion of the court, said, ' There may be cases in which, though a prior damage be fol- lowed by a total loss, the assured may nevertheless have claims in respect to such prior loss. Actual disbursements for repairs (2) Llvie v. prior to a total loss are of this description, unless they are more Sanson, 12 properly covered by the authority of suing, labouring, &c.'(2) ^^ ' A ship insured from Jersey to Norway sustained sea-damage on the voyage, to the amount of more than twelve per cent, and, after this damage was repaired, was captured. On the question whether both losses could be recovered. Sir James Mansfield, giving the opinion of the court, said, ' This policy of insurance is a very strange instrument, as we all know and feel. In prac- tice I know of cases in the King's Bench, where such expenses bave been recovered as an average loss, without making any distinction whether it was recoverable as an average loss from (3) Le Che- damage repaired, or within the permission to sue, labour, travail, ™i"^"t ^'- n 1 IT- -I 1 1 I- ^ • r 1 earson, and etc. and as no such distmction has been made, we nnd it saier game r. Ail- to adhere to the practice which has obtained, and to call it all nutt, 4Taunt. average loss.'(3) ^^''^• There is no doubt that the underwriter may in some cases be Whether an liable to pay in losses an amount exceedhior that of the insurable ^■^erage loss • i , -n T T • r. • • 1 ° 1 • , for repairs niterest. Mr. Justice Story intimates that the insurers may be ^ay exceed liable for the expense of repairs exceeding ihe amount insured, the amount of He says, ' The assured may in all cases elect to repair the da- ^ ^°*a^ ^0°^. mage at the expense of the underwrifcr, and if he acts bona (4) Peele v. fide and with reasonable discretion, there is no decision yet p*''''p^"i,"^' pronounced, which declares he shall not be entitled to a full s. Mass. Oct. compensation, however great ic may be, even though it should 1822, 2 Ma- equal or exceed the original value of the ship.'(4) But no case son-** of this description has occurred, and the circumstances must doubtless be very remarkable to justify repairing the damage of a ship, at an expense exceeding her value at the commence- ment of the voyage. One reason for repairing a ship in a foreign port, at an extraordinary expense, is the necessity of doing so for the purpose of earning a great amount of freight pending at the time. Magcns is of opinion that the insurers (5) yol. 1. of freight, or the owners, if it is not insured, ought, in such p- 255. cas. case, to pay a part of the expense of the repairs. (5) He ^^' ^°- ^• is speaking of the case of a vessel repaired at Jamaica, wdiere repairs are more expensive than in England, and he thinks the freight should pay the excess of the expense of repairs. 42 330 General ave- rage in addi- tion to a total loss. (1) M'Bride V. Mar. Ins. Co. 7 Johns. 431 ; Jumel V. Mar. Ins. Co. 7 Johns. 412; Barker r. Phoen. Ins. Co. 8 Johns. 237. General Average. Chap. XV. But the cases in which the amount of losses under a policy unquestionably may exceed the amount of the interest, and which often do exceed that amount, are those of total loss, pre- ceded or accompanied by a general average loss, or by ex- penses which come under the agreement of the insurers to pay the expense of labouring, &c. for the safety of the property. If a ship puts into port to repair, and is afterwards totally lost in the course of the voyage, or if the property insured is cap- tured, and expenses are unsuccessfully incurred to obtain its re- lease, the underwriters are no doubt liable to indemnify the as- sured on the amount underwritten, for his proportion of the ex- penses of putting into port or of claiming the captured pro- perty.(l) CHAPTER XV. GENERAL AVERAGE. Section 1. What distinguishes General from other Losses. Losses are general or particular, partial or total. Expenses incurred, sacrifices made, or damage sustained, for the common benefit of ship, freight, and cargo, constitute general or gross average. A loss which is not incurred for the general benefit is ^ parlkular average or total loss.(rt) By a total loss is understood one on account of which the as- sured is entitled to recover the whole value of the subject, as between the parties, as far as that value is insured in the j)olicy. A partial, is not distuiguished from a total loss by its amount merely, since it has in some instances been said by judges, that the sum to be paid in such a loss may exceed the value at which the subject is insured. In a total loss the amount recovered is a compensation for the subject itself, as far as it is insured ; in (rt) Certain small charges, which were formerly assessed, in part, upon the cargo, such as pilotage, towage, port charges, &c. are called ]>e.ttii avcrni^c^ in distinction from gross average. Le Guidon, c. 5. a. i;i; 2 Weyt. de Av. s. 4 ; Cunningh. L. Die. tit. Ay.; Weskett, art. Petty Average. These charges at length came to be com- j)Ouiidcd lor at a certain per cent on the freight, and bills of lading in use at present, contain a provision for the payment o{ primatre and (iverdi^c occimtomcd^ which is a certain per cent on the amount of freight on some voyages ; while on others no snch allowance is made. None of these charf^es concern the insurer, except when (hey come under general averacje, or llie clause in (he policy authorizing the assured (o sue, labour, &-c (or the safely of the property. Sect. 2. Jettisons and Sacrifices, S^c. 331 a partial loss the amount recovered is a compensation for the damage to the subject, or a reimbursement of expense incurred on account of it. If one person at the dxpress or implied request of another, Principles on or with any authority for so doing, renders such other a service, which ave- by bestowing his labour or incurring expense on his account, he J^jf^ dependr is entitled to a compensation for his services, and a reimburse- ment of his expenses. In some instances the circumstances in which property is placed, give any one authority to take charge of, and save it, as where it has been lost, or is in imminent dan- ger of being so. Under such circumstances any one may ren- der services, without any express request from the owner, the occasion giving him an authority, and being equivalent to such a request; and he will be entitled to compensation as far as any such request can be implied. Accordingly the finder or salvor, in such cases, has a lien on the property for a reasonable com- pensation, or a contract arises between him and the owner, by which the latter becomes obligated to remunerate him as far as the property is sufficient for this purpose. General average contributions are founded upon the same principle. Where expenses are incurred, or sacrifices made, on account of ship, freight, and cargo, by the owner of either, the owners of the others are bound to make contribution in the pro- portion of the value of the several interests. But a loss, though it be extraordinary, and not a part of the Characteris- expense and inconvenience of navigating the vessel, if it take tics m general place without the agency of the master, or crew, or other per- jossesf sons acting for the general benefit, is not a subject of general contribution ; which must be an expense incurred, or sacrifice made voluntarily and with deliberate intent. The circumstances of deliberate purpose and a view to the common safety, distin- guish general from particular average. The occasions for general contribution, and the principles Contributions upon which it is made are the same, whether the property is '" general insured or not. The underwriters are only liable to pay the nnlde^houtrh assured the proportion of the contribution, assessed upon the the property amount insured, when the loss is occasioned by some of the is not insured perils insured against. But as general average losses usually arise from the perils insured against in the common form of the policy, underwriters are usually liable to reimburse to the as- sured the part of the average contributed by the amount insured ' in the policy. The principles of general average therefore be- ^ come an essential part of the law of insurance. Section 2. Jettisons and Sacrifices of a part of the Inte- rest at Risk. When it becomes necessary for the general safety to lighten the ship by making a jettison, or throwing overboard a part of jettison. the cargo, or of the provisions, tackle, or furniture of the ship, 332 General ^verao-e. o Chap. XV. "Whether the crew is to be consulted as to making jettison. (1) 1 Emer. 605. c. 12. s. 40. (2) BIrkley v. Presgrave, 1 East, 220. See 2 Bin. 565. For what de- scription of sacrifices con- tribution may be claimed. (3) Le Gui- don, c. 5. a. 21. Laws of Oleron, a. 9. Cod. de Cora. 1. 2. t. 11. a. 211. Goods carried on deck. (4) Ord. Louis XIV. tit. Jet. a. 13. Cod. de Com. a. 232 ; Abbott on f^bippiyg,^.}!-, Le ncj ^ r. Lilians. Co. ■'•> Johns. Cas. 17.J; Smith t, Wrifjht, 1 Caines, 43, (5) torn. 2. p. 205. And see 1 Emer. 140. the loss must be made good by contribution out of what is saved of ship, cargo, and freight. (a) Most of the codes of sca-lavvs require the master to consult the officers and crew before making a jettison. But it is often impracticable, since jettisons are most frequently made in time of danger and hurry. Targa says, that during the sixty years while he had been a magistrate of the admiralty court in Genoa, he knew of but five jettisons regularly made, and those were suspected to be fraudulent on this account.(l) "Where the occasion admits of it, the master will naturally consult his officers and men, but to subject him to their opinion is so far taking the government of the ship out of his hands. Lord Kenyon says, ' The rule of consulting the crew is rather founded in prudence, in order to avoid dispute, than in neces- sity.'(2) Chief Justice Tilghman plainly intimates an opinion that a consultation is not necessary. (6) The right to claim contribution depends upon the kind of sa- crifice made, and the occasion of making it. When a part of the cargo is thrown overboard there is no doubt of its being a kind of sacrifice for which contribution may be claimed. But if the owner of the vessel is the party claiming contribution, he is en- titled to remuneration only for extraordinary expenses and sacrifices, and such as constitute a loss under a policy of insu- rance upon the principles which have been stated in a preced- ing chapter ; since the ordinary expenses of navigating the ves- sel must be borne by the owner, as the means of earning freight. If a mast be cut away, or a cable cut, or slipped, or if guns, or a boat, or a part of the ammunition or provisions are thrown overboard, these are doubtless such losses and sacrifices as, in general, give the owner a right to demand a contribution, if the occasion on which the loss is incurred, and the circum- stances under which the sacrifice is made, are such as to au- thorize the claim.(3) But the right to demand contribution may depend upon the the particular situation of the thing sacrificed. If goods carried on deck are thrown over, it is held, in general, that no contribu- tion can be claimed. (4) The reason given by Valin, is, that goods so carried embarrass the navigation of the ship. But he thinks that this doctrine ought to be controlled by the usage of the trade, and accordingly that contribution may be claimed for goods thrown overboard from the deck of small coasting vessels, or I'iver craft, which usually carry a part of their cargoes on d(;ck.(5) (d) Lege I'vliodiii cavctur, ut, si levandae navis gratia jactus mer- ciuin factus est, omnium contributione sarciatur, quod pro omnibus datum esl. Dig-. 11. 2. 1. (/>) Sims V. Gurncy, & al. 4 Bin. 52 1. The law of the United Stales, July 20, A. ]). 17iJ(), c. 56. s. .'3. requires the assent of the mate or second officer, and a majority of the crew, to putting back after the voyage is commenced, on account of the unseaworthiness of the vessel. Sect. 2. Jettisons and Sacrifices^ ^c. 333 Upon the principle of this exception, if it is the usage of the trade to carry a part of the cargo on decic, a jettison of it ought to be a subject of general contribution. It is accordingly the prac- tice in respect to whaling voyages to adjust, upon the principles of general average, the loss of oil thrown overboard from the deck, where it is carried for a short time after being put into casks, be- fore it can be properly and safely stowed in the hold. It is usual to carry on deck a part of the cargo of a vessel loaded with lumber, but it does not appear to be the practice to contri- bute for this part of the cargo, if it is thrown overboard. The distinction in respect to the loss of a boat, carried on Boats, deck, or on the sides, or at the stern of the vessel, which has before been noticed,(1) is made in cases of jettison, as well as in (]) Supr. 235. particular average; many persons being of opinion that a boat cut away from the sides or stern is not to be contributed for; while others consider it a proper subject of contribution. The right to claim contribution in such case evidently depends upon the usage to carry the boat in this situation, and also upon its security, when so carried. The loss of a boat cut awav from (-) Lenox v. * the stern davits was considered to be a subject of general ave- !, t .* ^^^•^°' TVT -iri/^\T/--i II • «J Johns. Caa. rage in JNew iork.(2) It it be necessary to carry the boat m 173, this manner for the safety of the ship or crew, there seems to (3) i Emer. be no reason why the cutting it away should not be the occa- 624. c. 12. s. sion of a contribution.(3) 41. Whei-e a vessel is thrown over upon her side and the mast is a mast cut a- cut away to make her rights this is a subject of contribution. ""■ay to make It is provided by some ordinances, and some writers are of ^';'c vessel opinion, that cutting away a mast that is sprung, or cutting the J' ' ^ rigging, which hangs over the sides, for the purpose of disen- amast°ihati3 gaging the vessel from the rigging, or from a broken master sprung, or rig- spar, is a subject of general contribution, according to the value g'ngthat of the mast or rigging in its situation at the time of being cut 3;^"^°^^'^ away.(4) Mr. Stevens says, ' the situation in which these arti- C4^ q d K cles are placed, renders them of no value.-(3) But if this be in2;sb. a.' 25 ; the only reason why they are not to be contributed for, it is con- Oid. Copen- ceding that they are subiects of contribution under these circum- l^^^'^'J" ^" stances, provided they are of any value in the situation supposed, Q^i. c. 12. and their value, in their situation at the time of their being sa- s. 41. crificed, is all that has ever been considered a subject of con- (5) Part. i. c. tribution. How does it appear that they are of no value in this ^'^•^- ^" ^" situation? It must depend upon the particular circumstances. If they would be of any value to the owner; in case of the sea being smooth, and the weather favourable, so that he might make the most of them, he ought to be compensated for this value, since this is what he sacrifices on account of impending peril and for the general safety. A case very similar to the precedinc:, is that of cutting or r^^ „ <• ., ,. . Ill 1 1 • ' 1 • /• I 1 '-^ase 01 the slippmg a cable w4ien the anchor is fixed in a foul or rocky anchor being bottom. If the cable is cut in such case, merely that the ves- fixed in rocky sel may proceed on her voyage, it is a particular loss, to be ^^"o'l^- sustained by the owner or paid by his underwriters,(6) since no (6)gupr. 256. agency of the master and crew intervened in causing the loss, 334 General Jiverage. Chap. XV. which had, in fact, taken place before the cable was cut. But if the cable is cut for the purpose of avoiding impending peril, the question then occurs, whether, under favourable circum- stances, the property sacrificed might have been saved, that is, whether, in favourable weather, and without any impending danger, and by the use of all the means afibrded Ijy the place at which the vessel lay, there would have been any probability, and how great, of recovering the anchor. A vessel lying in Funchal Roads was driven in a gale, and dragged her anchor nearly a mile, until she brought up at a short distance from a rocky shore. After the gale had abated in some degree, but while it still continued Vvith very considerable violence, the sea at the same time setting towards the shore, the master attempted to raise the anchor for the purpose of removing to a more safe anchoring ground. It was however found to be impracticable to raise it, and to avoid the danger of the situation, — since in case of the anchor's dragging, or the cable's parting, the vessel would have gone upon the rocks, — the master cut his cable. The loss of the cable and anchor was considered to be the sub- ject of contribution ; and the whole value was allowed, because it was thought possible that in favourable weather, when the (1) Cod.de vessel could without any immediate danger have remained in ri™' ^233 *' ^^^^' situation, the anchor might have been recovered. 237 • Casar. Excepting the cases in which the situation of the part of the disc. 46. n. ship or cargo sacrificed exonerates the parties concerned from 13. 57; Q. contribution, it is a universal rule, constituting a part of every 1U-' Mol-^' f'ode of laws, and which has been acknowledged and acted upon loy, l' 2. c. 6. from time immemorial, that if a part of the ship or cargo is vo- s. 8; 1 Mag. luntarily sacrificed to save the remainder from some impending 64. s. 54. peril, the owners of what is savcd-must contribute for the loss. Damage incl- All the damage incidentally done to the ship or cargo in mak- dental to jet- \^^ r^ jettison, constitutes a part of the amount to be made good °°"' in general average.(l) VVhcre in cutting away the mast it splintered below the partners, and made an opening by which water was let into the hold, in (2) Maggrath consetjucnce of which the cargo, consisting of corn, was daniag- V. Church, 1 cd, this damage was considered a subject of contribution. (2) ^^'"^M^^^' ^^ c'diii. of the vessel's arriving at a port of discharge after a 277 NorE. jettison of goods, the loss by payment of the freight of the Cod. dc Com. goods, for the whole voyage performed, is one of the conse- 1. 2. tit. 8. du (jucnces of the jettison, and the average should be so adjusted I ret a. . ^^ ^^ include this among the subjects of contribution. (3) Goods taken , f. . c . i i • i ■ . • * i t c ,\ 1 1 toiiirhtcn '* ^^ P'^'^''- *^' *^'"-' cargo which is j)ut nito boats lor the purpose thr; .sliiii that of lloating thc ship, when she is aground, or to lighten her that shi- may pass j;|je ,)j^y pa^c^ over a shoal, or bar, is lost, it must be made good over a bar. ],y contribution.(4) But a distinction is made between lighten- dc iftr'Wod! •'^'^ ^^'^' vessel for this jiurpose in extraordinary circumstances. Cod. dc Cora, as in j)Utting into a port of necessity, and in thc ordinary course 1. 2. t. 11. n. of the voyage, as in ))uttiiig into the i)ort of (h^stination. Where X^\'T^\^T^ it is usuaf for vessels of tlie same burthen of that on which (he l.a'. i! n! V. insurance is made, to discharge a part of the cargo on thc out- Q. Wtytsuii fcide of the Ijar of the port of destination, there no contribution ,.17. Sect. 2. Jettisons and Sacrifices, S{c. 335 is to be made, though the goods should be damaged in the light- ers.(l) A vessel having sprung a leak at sea, a part of the goods were xhe ship hav- taken out to lighten her, that the leak might be found and stop- ing sprung ped. She was thus enabled to proceed on her voyage, and aleak, a part linally arrived at her port of destination. The goods taken out ^^^ puf on ^ were put on board of other ships which were captured. The board oi" other goods being thus lost, were contributed for in general average.(2) ships. A ship having run aground in the river of Calcutta, some bags jettison of a and kegs of dollars were taken from the vessel into the boat, part of the and in going to the shore, the sea being rough, and the boat in g°°^^ put into danger of foundering, a keg of dollars, and some other part of caseof the the boat load, were thrown overboard. A claim being made for stranding of contribution by what was saved in the boat, the court said, the ship. 'The goods saved in the long-boat, and the goods lost in the (i)Poth.Des jettison from it, were thus exposed together in consequence of ^^'^' ^"^^ ' a previous peril, and for the purpose of saving what could be ^^ j^^" ^_ ^g^ saved, without any concert or mutual design of the parties inte- n. ; l Emer. rested. The loss of the plaintiff's keg of dollars, without any 613. c. 12. regard to the safety of the other effects taken into the boat, at- ^-^^^ ^^ fords no case of average. The requisites to a case of that \qq^ Cas. ix. nature, are a contract by which the properties of different per- sons become exposed to a common peril, and a relief from that peril at the expense of one or more of the concerned, who are thereupon entitled to contribution, provided the benefit was in- [P^^J^^^rTs tended, as well as obtained for them. All these requisites are g l^^lg^ ^gp!' wanting in the case at bar.'(3) If the persons in the boat are 125. to be considered mutual depositaries of each others' goods, and the common depositaries of the goods belonging to the other shippers, some obligations must arise from this trust, though not the same which the owners of the ship assume in a bill of lading .^. ^^^^^^ g, n. or charterparty. Valin thinks it equitable that depositaries oo5. du Jet. should, under such circumstances, be liable to contribution.(4) a. 15. The cutting or slipping the cable, for the purpose of putting Loss by the to sea on account of the danger of going ashore, or running foul ship's coming of other vessels, or to avoid any other impending peril, is un- avoki^aTee- qucstionably a subject of contribution ;(5) there is, however, a shore or other diversity of opinion respecting the loss of a cable and anchor impending in consequence of a vessel's being obliged to come to anchor in P*^"^- an unusual and dangerous place. Some are of opinion that C^) l ^^a- this damage, whether it happen in the usual course of the voy- xxvii!^^' age, or under extraordinary circumstances, is a part of the (6) Supr. 256 ; wear and tear of the ship, for which the owner is entitled to no Stevens on contribution from the owner of the cargo, or indemnity from his ^ ' • ^' underwriters.(6) Others entertain doubts upon this subject. But if such a loss take place under extraordinary circum- stances, within the risks insured against, or in consequence of the unusually violent operation of the perils assumed by the in- surers, it is difficult to reduce this damage within the mere Avear and tear of the voyage, upon any principle which would not ex- onerate the insurers from all average on account of damage to the ship. Whether it is to be considered general average de- 336 General Average. Chap. XV. (1) See Wes- kett, tit. Gen. Av. n. 3. Damage by carrying a press of sail to avoid a lee- shore or ene- my. (2) 1 Emer. 621. c. 12. s. 41. (3) Stev. on Av.P. 1. c. 1. a. 1. s. V. & c. 3. s. ix. ; Covington v. Roberts, 2 N. R. 378. S. C. Marsh. Ins. 543. (4) See Wes- kett,tit. Geu. Av. n. 3. Materials ap- plied to ex- traordinary uses. (5) Birkley i-. Fresgrave, 1 East, 220 ; Stev. on Av. r. I.e. l.a. l.s. G. The abandon- ment of the boat for the purpose of deceiving the enemy. («) torn. 1. 1). 622. Expenae of convoy and pends upon its being incurred purposely. If a ship, as often happens, come to anchor to avoid going upon a lee-shore, and can escape from this perilous situation only by cutting or slip- ping her cable, this is a sacrifice intentionally made under ex- traordinary circumstances, and as directly for the general safe- ty, as any jettison or other sacrifice can be imagined to be, in any case whatever. The loss of the cable and anchor, or the expense of recovering them, seem therefore to come un- questionably within the principles of general average. But if under these circumstances the loss is the consequence of the parting of the cable, or its being chafed off by the rocks, it seems to be more strictly and properly a particular average. This loss is however not unfrequently adjusted as a general average.(l) If sails or spars are carried away in consequence of carry- ing a press of sail to keep off a lee-shore, or escape from an enemy, the loss, in some foreign countries, is a subject of contri- bution,(2) but in England it is not considered to be so. Although the carrying a press of sail is a voluntary act, yet it is done in the usual course of navigation ; it is not a voluntary sacrifice of the thing lost. On account of the state of the weather, or the situation of the vessel, the sails and spars, though put only to their ordinary and accustomed use, are more than usually exposed to damage. Any loss, although it happen in consequence of what is thus voluntarily done, and for the general safety, is therefore considered as not coming within the conditions of a general average ; but — if not wear and tear — as strictly belonging to the class of particular average, which is always a conse- cjuence, more or less remote, of what is voluntarily done in the course of navigating the ship. (3) This rule seems to be pretty justly deduced from acknowledged principles, and it is adopted by some skilful and well informed insurers. But others, whose opinion is entitled to great respect, consider losses of this de- scription to be proper subjects of contribution. (4) Another case of general average is the application of some- thing belonging to the ship to a use difierent from that to which it is applied in the ordinary course of navigation. If spars arc cut up to construct a temporary rudder, or cordage is used to fasten it, or a cable or rope and spar are put out to as- sist in steering the ship in case of the loss of the rudder, or a part of the sails and cordage are used at sea in stopping a leak, or folhrring, as it is called ; there can be no question that the loss and damage are su])jects of contribution.(5) 10merigon(6) relates at large, and with great commendation of the captain, a case of average for the loss of the boat of a polacre, commanded by captain 13cmoulin of Marseilles, who being chased by an enemy, as night came on, extinguished the lights in ihc ship, and put out his boat with a light on jjoard to deceive iIk; cnfiny, and divert him from the pursuit, and by this means saved his vessel. Emcrigon enumerates, among the subjects of general average, the expense of liiring convo}^, where its protection is essential to Sect. 2. Jettisons and Sacrifices, 8rc. 337 the safety of the ship.(l) Casaregis sajs,(2) that the loss of cutting the the cable and anchor is to be made good by contribution, in ^jj*!!*^ c^l^voy^ case of the master's being unavoidably obliged to slip or cut his ^wq^^ i_ p,' cable to keep company with convoy. But no instance of average 626. c, 12. contribution for these causes appears in the books to have oc- «• 41. curred in England or the United States. Casaregis says, the damage to the ship and cargo by fighting, Dam^ce in an is parUcular average, but if the engagement was intended merely engagement for the defence and safety of the ship and cargo, all the expense "^'^^ an ene- of the engagement, including that of healing the wounded, and ^Js°^-^^^\l' the reward to the men for their bravery, are subjects of contri- J^/q bution.(3) But writers entertain different opinions upon this sub- (3) Disc. 46. ject.(4) n- 43, 44. In respect to a claim for contribution in case of an English „ Y44 • Le merchant vessel, which had received damage in beating off an Guijon, c. 5. American privateer, and incurred expenses m healing the wound- a. 4. ed seamen, Chief Justice Gibbs said,' It was the duty of the sailors to defend the ship. By so doing all parties have been benefited. But in what respect have the captain and crew ex- ceeded their proper duty ? What sacrifice have they made which they were not bound to make ? The expense of medical and surgical aid must be borne by the parties themselves. Al- ,,. ^^ though this may be an ungracious defence, I am of opinion that Curtis^^HoU it does not fall within the principle of general average. '(5) Mr. 192. Holt gives reasons in support of this opinion. (6) (6) lb. 194. n. But the reason given by the Chief Justice, would exclude many of the subjects which are acknowledged universally to be- long to general average : since it is doubtless the duty of the captain to make a jettison of goods, or cut away the mast, if it is requisite for the general safety. If an armed ship attack another ship with the hope of making prize, and not as a mea- sure of defence, the proceeding is rather of a warlike than of a mercantile character. But where the crew engages another vessel for the mere purpose of defending their own from cap- ture, there seems to be quite as good reason for assessing upon what may be thereby saved, the expense of the ammunition, and that of healing the wounds received in the engagement, and the amount of rewards given to those who distinguish themselves, as can possibly exist in any case for a general contribution. The damage sustained by the ship in the engagement seems to. be very similar in principle to the loss of goods put into lighters to prevent a ship from stranding, since in both cases the loss, though not directly and immediately intended, is yet the direct consequence of voluntarily putting the property into a situation of great danger. The voluntary stranding of the ship is another (7) Disc. 46. similar case. n. 45. 63. Casaregis says, if a number of ships lie near each other in Whether (he port, and one of them take fire, and a ship near is sunk by the voluntary de- crews of the other ships, to prevent the fire from being communi- ^truchon of cated to them, the loss of the ship sunk must be contributed for of other per- by those saved.(7) The general principle upon which all con- sons for the tributions in general averages are made, seems to comprehend safety of the 43 338 General Average, Chap. XV. ship and car- go, is to be contributed for. (1) Tit. 21. s. 9. n.3. 2 Mag. 237. No. 983. SeeOrd. Wisb, a. 55. Wesk. tit. Gen. Av. n. 2. Langen- beck's Annot. p. 198. cited 1 Mag. 65. Getting off a vessel that is accidentally stranded. (2) Des Av. a. 6. (3) Cod. de Com. 1. 2. t. 11. a. 211. (4) Tom. 2. p. 167. (5)Tom. 1. p. 614. (6) Des Av. a. 5. (7)B. 4. C.2. p. 348. Am. Ed. 1818. (8) Lisc. 46. n. 32; De Vincq. ad Q. Wcyt. de Av. n. 45. The inten- tional strand- ing of the vessel. (9) P. 1. a. 2. c. 1. the case put by Casaregis ; since there appears to be as good reason why the ship and cargo saved by the captain's sacrificing the property of a third party for this purpose, should contribute to make compensation for the loss, as that what survives a jetti- son should Ijc brought into contribution. Upon the same prin- ciple, if the crew for the safety of their own ship and cargo, cut the cable of another ship, the loss ought to be made good by a general average on the ship and cargo for the safety of which the dam.age was done. The foreign marine ordinances contain particular regulations upon this subject, but it does not appear to have been brought under the consideration of either the Bri- tish or American judicial tribunals. The ordinance of Hamburg makes the expense a subject of general average, ' when the ship runs aground, and in order to get her off again is forced to have assistance of strangers ; or be unloaded. '(1) The French ordinance provided that the expense of putting the vessel afloat should be general average,(2) but the new code restricts this provision to the case of ' stranding with the intention of avoiding a total loss.'(3) Valin(4) and Emeri- gon(5) evidently understand the provision of the code of 1G31 to appljf to a case other than that of an intentional stranding. It could not apply to the damage done to the ship, since the same ordinance provided(G) that such damage should be particular average when the vessel was not stranded on purpose. The expense of discharging the cargo to get a vessel afloat that has been accidentally stranded, and that of reloading the car- go, and the other expenses requisite to enable the vessel to pro- ceed on the voyage, except that of making repairs, are in prac- tice, as I am informed by insurers, brought into general average, where the vessel after being got ofT proceeds with the same cargo. But in case the lightening of the vessel does not make her float, and other means are necessarily resorted to for this purpose, such as buoying the vessel with casks, or making a channel, it does not appear from decided cases, or any delinitc and v/ell established practice, that this extraordinary expense is a part of the general average. Jacobsen says, 'the clearing away, if the ship cannot be brought up by mere lightening and raising, are particular average.'(7) Casaregis says, if the ship might pass over a shoal by a jetti- son of a part of the cargo, but the cajitain chooses 1o strand the ship ; all the damage, whether it be loss of the ship, or the ex- pense of getting her afloat, is a subject of conti-ibution.(8) Mr. .Stevcns(9) considers it to be doubtful whether contribu- tion is to be made for the damage sustained by a ship, and the expense of getting her afloat, in case of her being intentionally stranded to csgapc from an enemy, or when she is in dangei- of foundering at sea, or driving against rocks, or running fonl of other ships. But in the very elaborate investigations of this fjuestion made in the American courts, it lias been generally ad- mitted by the parties, and assumed by the judges, that accord- Sect. 2. Jettisons and Sacrifices, 8{c. 339 ing to the maritime codes, and the treatises on marine law,(a) (i) 9 Johns, and also upon general principles, this proceeding comes within ^ ; 2 Serg. & the reasons for contribution.(l) 23T^n ^^^' One objection was made indeed to considering damage of this sort a subject of contribution in any case, since, it was said, the ship and cargo were exposed to a common danger by an inten- tional stranding ; whereas it was alleged that in general average a part is sacriticcd or exposed for the general safety. Respect- ing this objection to contribution, Mr. Justice Washington said, 'It cannot be said that the loss of the anchor, by cutting the (2) Gray «. cable, may not expose the whole to danger. A certain injury. Wain, 2 with a probability of a total loss, is incurred by the ship for the ^'^''»- ^ common safety, and therefore she is entitled to contribution.'(2) ^^ e,237.n. The question which has been principally considered in rela- tion to an intentional stranding, is one which may arise in re- spect to a jettison, or any other sacrifice, namely, whether the final event is such as to subject the property saved to contribu- tion ; it being maintained on the one side, that no general average is to be made, unless the vessel could be got afloat and repaired, and on the other, that this condition is not essential to the claim. This question will be considered subsequently. The right of claiming contribution in case of the ship's being intentionally run aground, has, in Pennsylvania, been extended to the case of the captain's merely selecting the place for this pui-pose, where the vessel had parted her cables in a gale, and was driving towards the shore, and must inevitablj^ I'un aground in some place. The vessel was steered towards Cape May, as ' the most convenient place to save the ship, crew, and property.' The vessel was stranded in a place thought to be the most con- venient for obtaining assistance from the land. Chief Justice Tilghman said, ' It is not necessary that the ship should be ex- posed to greater danger than she otherwise would have been, to (3) Sims r. make a case of general avcrao-e. It is sufficient, if a certain loss Cfurney, 4 be incurred for the common benefit.'(3) This seems to be carrying the principle of contribution very far, and yet it is difficult, though perhaps not impracticable, to distinguish this case from those in which the principle is usually applied. When the consequence of a peril has become inevita- ble, and the acts of the crew are intended to alleviate, instead of avoiding such consequence, it seems hardly to be voluntarily in- curring a loss. If a ship driving towards another, and inevitably about to run foul, is managed by the crew in such a manner as in some measure to break and lessen the shock, this, doubtless, w^ould not give occasion for contribution. Where the damage is rather the effect of the direct and inevitable operation of the {a) Big. de leg. Rhod. 1. 3. Cons, del Mar. c. 192, 193; Roc. de Nav. c. Ix. n. 164; 1 Mag. 308. Cas. xxvi. ; 2 Mag. 200, 332; Ca- sar. disc. 19. n. 18 ; Bvnk. Q. Jur. Priv. 1. 4. c. 24 ; Ord. de la Ma- rine, tit. des A v. a. 6 ;' Cod. de Com.l. 2. t. 11. a. 211 ; Poth. Contr. de louage, a. 150; 2 Vul. 168. des Av. a. 6 ; Voet ad Pandect. 1. 4. c. 24. tit. de Jactu. 340 General Jlverao-e, Chap. XV. (1)P. I.e. 1. a. 2. s. [a.] (2) lb. s. [b.] Expense of salvage. (3) Heylyger V. .New York Firem. Ins. Co. 11 Johns. 85. Ransom. (4) Abb. 331. I .\la-. 64. Beaw. c. 1. tit. Salvage, &LC. (5) Nesbitt v. Lu=hiii.:ton, 4 T. R. 783. (6) Emer. torn. 1. p. 474, 629, 630 ; Lopes r. \N inter, Tothleth^s Diet. lit. Average. (7) 22 Geo. Hi. c. 25; 35 Geo. III. c. 6G. s. 37, 38, 39. Compromise witli captors. peril, than of the act of the master and crew induced by the peril, it seems more properly to belong to particular average. Mr. Stevens is of opinion, that damage occasioned by intentional run- ning aground on account of perils of the seas, is not a subject of contribution, but he acknowledges that his opinion is not sup- ported by either custom or authority.(l) In regard to damage from this cause, and also by voluntary stranding to avoid an enemy, he says, ' both these cases require great consideration before they are admitted under the head of undisputed general average claims.'(2) But it would require very weighty and con- clusive reasons to shake the authority of a general custom, sup- ported by the opinions of other writers and the decisions of the courts. Persons who save property after shipwreck, or who recapture it, are entitled to salvage, and the expense of salvage is paid by the property saved. The expense of salvage is accordingly paid by the owners of the property or their insurers, (3) and where the salvage allowed is in the proportion of the value of the dif- ferent interests, as in the case of recapture particularly, it be- comes a general average. Goods or money given to pirates or plunderers, by way of composition, must be contributed for by the property thereby rescued. (4) But if they seize a part from choice or casualty, and Avithout any composition, and the rest is not saved by the sacrifice of what is taken, it is a particular average.(5) It was formerly the practice to ransom vessels captured by the public enemy, and to give hostages as security for the pay- ment of the ransom, in which cases the amount of the ransom, as well as the expenses of the hostage, during his detention, were settled by general contribution.(6) But, more recently, laws have been enacted prohibiting compositions with a yjublic enemy,(7) and such compositions have been considered illegal although not prohibited by specific laws. The purchase of the captured vessel or cargo at a sale, under a condemnation in a court of the enemy, is considered to be no less a trading with the enemy than an agreement made directly with the captors at sea.(fl) If the compromise be lawful, as in the case between neutrals and belligerent captors, the amount must be conU'ibuted by the property on account of which it is made. 'When the progress of the voyage is interrupted by capture or other casualties, the master of the vessel becomes of necessity an authorized agent for the owners, freighters, insurers, and all concerned, and what- ever he undertakes, and whatever expenses he may incur, fairly directed to the benefit of all concerned, liecome a charge ujwn them respectively, as much as when recovered under a special authority and license, and pursuant to an immediate request. The request and aulhoiitirs arc necessarily implied, when the master exercises his discretion and judgment fairly. When his (a) Havolock v. Rockwood, 8 T. R. 2G0. In France it was al- lnwp(l to give but not to take a ransom. Emcr. torn. 1. p. 465, Sect. 3. JVo Contribution is made unless, Src. 341 proceedings are within the usual course of business, as in the event of sea-damage, when he provides suitable repairs neces- sary for the prosecution of the voyage, the expense may be more readily acquiesced in ; but the case is not stronger, than a pro- vision fairly made, in a case of unusual and unforeseen casualties. The implied authority and duty of the master, enable him in ^^^ ^^^ both cases to engage the personal responsibility of his employers J-,_ ir. Justice Bayley says, ' If the repairs were merely such as were necessary to enable the ship to prosecute her voyage home, and were afterwards of no be- nefit to the ship, such repairs would properly come under gene- (1) 3 M. & ral average.'(l) , , , . '■^- ^^^• The expenses of going in to refit, to be contributed for in Expenses in- general average, consist of the port charges, pilotage, light mo- cidentai to ney ; unloading(2) and reloading the cargo; coopering casks tjoVof^he^" when rendered necessary by the unloading of the cargo ; sto- voyage. rage ; hire of anchors, cables, or boats ; wages of people employ- (2) The Co- ed to guard the property, or to cut the ice in order to get the penhagen, 1 ship into, or out of, port, or otherwise to assist the crew in en- ^°^- '^^'^• tering or leaving the port ; brokerage ; postage ; fees of nota- ries for protests, &c. ; and in general all the expenses incidental to the interruption of the voyage for the general safety. It seems formerly to have been a question of doubt, whether '^^^ wages ,, r "^ 1 ••!• 11 ^ • and provisions the expense 01 wages and provisions during a delaj^, and going ^f ^^e seamen out of the course of the voyage to refit, were to be contributed during delay for in general average.(3) It has hoAvever been very distinctly to refit are not settled in England that this expense is not to be contributed for. S^"^'? ^^'^" i.-I /» T 1 "FIT •)! 1^ f^CG ill. l-*ng" A ship insured on a voyage irom London to Marseilles and i^nd. thence to the West Indies, was compelled in the course of the /o) ^ lyj^g. voyage to put into port ]\Iahon in Minorca, where she was de- p. 64. 69. tained a long time for repairs. The expense of wages and pro- ^; ^'^'■> visions of the crew during this time was claimed of the insu- Sah^Av.&c.* rers. Lord Mansfield was of opinion that this claim could not Abbott on be allowed. (4) Mer. Ships, In a subsequent case of a claim for wages and provisions, « . o^^'-p^'p^ during the time while the ship went from Bengal to Bombay to 49"' repair. Lord Mansfield held, as Mr. Park says he frequently (4) Fletcher has since, that the insurers were not liable for this expense, y; ^'°°!f ' But he said, ' There may be cases, where exceptions to the ' ' general rule should be allowed ; but in order to consider a case as excepted it must be an expense absolutely necessary, and (5) Lateward such as could not be avoided, owing to some of the perils stated p'^^^k" "o?'- in the policj^X^) Marsh. 539. The subject of general average was not particularly consider- ed in these cases, but as nothing was recovered, under a policy on the ship, for wages and provisions, this was in eft'ect deciding that these expenses are neither a particular nor general ave- • rage, since, if they had been considered a loss of either of these descriptions, something would have been recovered on this ac- coifnt. In a case of insurance on a ship and cargo from Ostend to Dominica, the ship met with bad weather in the course of 348 General Average. Chap. XV. the voyage, and the crew threatened to take the command of the ship, unless the master would make the nearest port. He accordingly put into Ferrol to repair, where he was detained during the time requisite for making the repairs, and after having made the repairs and being ready to sail, he was detained thirty-seven days by the order of the governor. Mr. Justice Bullcr was of opinion that the insurers were not liable Poole Park ^^^ ^^^ wages and provisions during the detention.(l) 91, ' ' Under a policy on goods from London to Lisbon, the master, discovering that the bowsprit bitts had given way, in conse- quence of the violence of the winds and waves, and the la- bouring of the ship, and thinking it dangerous to proceed with- out repairs, put into Cowes ' for the purpose of securing the bowsprit.' The assured claimed a general average loss on ac- count of the wages and provisions during the detention, as well as the expense of repairing the bowsprit. Lord Ellenborough said, ' General average must lay its foundation in a sacrifice of \vi t ^^'' ^' a part for the sake of the rest, but here was no sacrifice of any 4 M. & s.' part. The several items of loss are none of them the subject 141. of general average by the laws of England. '(2) In case of a The decisions of the American courts, and the practice of vessePs put- insurers, concur in allowing the wages and provisions as a part tingintoa ^f j.^^ average loss in case of an interruption of the voyage to wages^ami ' refit. A vessel on a voyage from the Cape de Verd Islands to provisions are Rhode Island, was compelled, on account of damage to her contributed sails and rigging, to put into Norfolk to refit, and the question IJaited States ^^"^^ made, whether the expense of wages and provisions during the delay for this purpose, was a subject of contribution. Mr. Justice Sewall, in giving the opinion of the court, said, ' A liberal construction in this respect appears conducive to the interest of insurers, in the benefit they derive from every rea- sonable precaution against impending and extraordinary risks, such as the continuing at sea with a vessel disabled in her sails and rigging. By rendering the concerned liable in a general contribution to defray the extraordinary expenses of seeking a port, and of the detention there to refit, the hazard of opposing •^ interest is avoided ; and a security common to all concerned is purchased, as it ought to be, at their common risk and expense. There may be some diHiculty in deciding whether a detention is or is not a case of general average. But Avhere a case is established to be of that nature, and sailors' wages and provisions make a part of the expenses necessarily incurred, this seems to be a sufiicient reason for allowing them. The seeking the port of Norfolk to refit, and the stay there, were a deliberate and ne- cessary departure from the course of the voyage for the benefit ford r^Hoard- ^^ '^'l concerned. 'J'his was therefore a case of general ave- man, 4 Mass. rage, and the sailors' wages anfl provisions, forming suitable K( p. 540. iioms of the expenses thereby incurred, are to be allowed.(3) (4) Clark r. rj,j^ principles of this decision have been since confirmed Idv Unit, r . Mar. , ' ' / v Ins. Co. 7 the same court. ('1) Ma3.lltp.LiC5. ^i'he same doctrine had l)een previously adopted in New York, in the case of a vessel compelled to bear away for Sect. 5. Expense of Delay by Capture. 349 Norfolk, to refit, in consequence of having sprung a leak in a 0) Walden v gale of wind. Chief Justice Kent, giving the opinion of the n'^-^^W'^ court, said, ' It is necessary that the mariners should remain See also Hen- for the purpose of proceeding to the port of discharge, as soon shaw v. Mar. as the inevitable misfortune creating the delay is removed. ["^■^"■,^L, The cargo might be sacrificed at the intermediate port, if the saitus kc'oni. crew were not to be retained ; and the expenses of their deten- Ins. Co. lO tion, being for the common benefit, ought to be apportioned as Johns. 487. a common burthen.'(l) From this opinion Mr. Justice Livings- t'hoen^^InrCo ton dissented, in an elaborate argument. He said, the reason s Johns. 307. alleo^ed in favour of the averaije, that the eoin"; in was for the See also the general benefit, proved too much, as it would bring the repairs op"iio" o' . of the ship into general average, as they were for the general Breed v. Ship benefit. He thought the expenses of going in should be borne Venus, Ab- by freight, and constitute a loss under a policy upon that in- bott, 337. n. terest. But the court adhered to its opinion in a subsequent ig'io'and' case.(2) Sage'r. Mid- But wages paid unnecessarily, and through mistake, are not diet. Ins. Co. a subject of contribution. A ship being wrecked at the Isle of 239°"* ^^^' France, where she had put in for the purpose of refitting, the American consul there, under a mistaken construction of law,(3) ^^^^ '^^'., directed the captain to pay three months' extra wages to a part and through of the crew. It was insisted on the part of the assured on ship mistake. and cargo, that this expense was a proper subject of contribu- (3) U. States tion. Mr- Justice Wilde, giving the opinion of the court, said, Laws, 7th * This loss arose partly from the mistake of the consul, and ^"gf" f '^3^^^' partly from the loss of the vessel. It was not the necessary (4) Dodger. consequence of putting into the Isle of France ; it is not there- Union Mar. fore a charge of general avera2;e.''(4) 1^^- ^°: ^'^ >=> ^ o V / jVIass. Rep. 477. Section 5. Expense of Delay to claim Captured Property. The expenses attending the delay, and making claim for the Expenses of vessel and cargo, in case of capture, are a subject of general claiming pro- contribution.(«) P^^^y captur- In 1748, the officers of the London Assurance Company said, Whether wa- respecting a case of detention for reclaiming the property, ' In ges and provi- law it is not made out yet in England, that men's wages and ^'°"* ^'"'^ ^}- victuals, by such detentions, are to be admitted into general dX^ytodaim average ; but the custom rather is for the owners of the ship to captured pro- bear them. '(6) Magens however thinks they ought to be a part perty. of the general average.(5) Ricard,(G) Adrian Verwer,(7) Wes- (5) Vol. i. p. kett(8) and Beawes,(9) all express, or strongly imply the same ^^- s- 57. p. ODinion. " ^"^^^ °- (^) upuiiuii. ... . (6) p. 297. It seems from a decision in England on a case of detention {j) Wesk.tit. with a hostile purpose, though not a capture, that there is no dis- Wages, n. 11. (8) lb. (a) Beawes, tit. Salvag-e, Averv-ge, &c. p. 157; Emer. torn. l.p. 631; (9) Tit. Sal- Cod, de Com. 1. 2. tit. 1 1. a. 211. n. 6 ; Speyer v. New York Ins. Co. [g§^' ^' 3 Johns. 89 ; Jumel v. Mar. Ins. Co. 7 Johns. 412 ; Kingston r.Girard, 4 Dall. 274. (6) 1 Mag. 344. Cas. xxvii. No. N. 350 General Average. Chap. XV. (1) Sharp V. Gladstone, 7 East, 24. (2") Leaven- worth V. Dal- afield, 1 Caines, 573. (3) Penny v. New York Ins. Co. 3 Caines, 155. tinction between these expenses and those incident to a deten- tion by capture.(l) A ship bound on a voyage from New York to Havre de Grace, was captured and carried into Ramsgate, in England, and de- tained from the 4th of September to the 4th of January follow- ing, when the property was restored, and the vessel proceeded to her port of destination. The expenses for wages and pro- visions during this detention, were claimed as general average. Mr. Justice Livingston, giving the opinion of the court, said, ' The expenses here in dispute, are incurred for the common benefit, in consequence of a vis 7najor, It was said in the argu- ment that the master was not obliged to detain his crew. It is sufficient that he has done it in the present case ; that he has acted with good faith, and that such detention was manifestly for the general weal. The cargo might have been sacrificed in England, if the crew had been immediately discharged.' And these expenses were accordingly included in the average.(2) Mr. Justice Livingston, giving the opinion of the court respect- ing a claim for the expenses of wages and provisions during a detention by capture, said, 'In the case of detention by capture, the charterparty is dissolved, and the captain (who is generally agent for all parties, to act for the best under every misfortune) reclaims both vessel and cargo, and without being under con- tract or obliged so to do, retains the crew for the purpose of preventing an entire loss, and pursuing the voyage if the pro- perty be acquitted; whereas he might dismiss them at once, and the underwriter be called on for a total loss. The expenses therefore incurred by a claim of this nature being evidently for the general benefit, if not impliedly at the general request, and not the effect of a previous stipulation or contract, which is at an end by the capture ; it is but reasonable they should be de- frayed in the same way .'(3) The same question has occurred in Massachusetts, upon a charterparty by which a vessel was chai'tered at a certain rate per month, for a voyage from the United States to Spain and St. Ubcs and back, during which voyage she was captured and carried into Gibraltar, where she was detained under admiralty proceedings from the 6th of January until the 10th of May, when she was ac(|uittcd and proceeded on her voyage, and finally arrived in the United States. Mr. Justice Jackson, giv- ing the opinion of the court, said, ' The necessary costs and charges incurred in claiming and obtaining the restoration of the ship and cargo, are undoubtedly to be allowed as a general average. As to the wages and provisions of the crew we are unable to sec any ground on which we can allow them. The only case in which this ciiarge has been allowed, in general average in our courts, was where it was necessary to go into port to repair damages, llcre it is to be observed the delay was volunlarily incurred by the I'laster; the mind and agency of man were cm])l()y('d in producing it; and this circumstance is deemed essential in every case of general average. If the Sect. 5. Expense of Delay by Capture. 351 service for which contribution is claimed, results from a previous obligation of the partj rendering it, or is the eflect of a pre- vious stipulation or contract, the compensation for that service is not to be defrayed in this manner ;' and then, assuming the position that the contract for wages between the owners and mariners is not necessarily dissolved by the capture, it is infer- red that the wag;es earned, during the detention, are due from (OSpaffordr. 1 I • c • • I ■ 1 1 Dodge, 14 the owners, ' in consequence or a previous stipulation, and are jyiass. iiep. therefore not a subject of general average.(l) 66. But the court is of opinion, that if the time of service of the crew had expired, and the master should, on arriving at the port to which the vessel is carried by the captors, enter into new obligations to the same crew, by shipping them again, or should ship another in their stead; the wages would be a sub- ject of contribution. If the retaining the crew is necessary or ex- ^^s -Watson v. pedient in attempting to avert a total loss for which the insurers Mar. Ins. Co. would be answerable, it does not appear on what ground it is 7 Johns. 57. material, whether they are retained in virtue of a previous con- ^^^ '^''^ ^^^ tract, or one made at the time when the detention commences. (4)'Liv."2. tit. The wages of the crew during delay by going out of the course xi. des Av. a. of the voyage to refit, are due in consequence of a previous ^^^',„ . ,, contract ; and yet those wages are allowed in general average. chartT-par-^* If in case of detention by capture the crew were retained merely ties, n. 85. because the master thought himself obliged by his contract to (6) Tom. l. p. retain them, and not because the retaining them was thought to /^n j^j^ o be of any importance in regard to the safety of the ship and jfjs. cargo, or the preventing a total loss by the breaking up of the (8) Penny v. voyage, the charges of their maintenance and their wages would New Yodc not seem to be a proper subject of contribution. But this docs Caines'l55. not appear to be the case contemplated by the court. If in case of capture, any part of the expenses is incurred on The expenses the separate account of the ship or cargo, such part is not a sub- of detention ject of contribution. A vessel was seized by the French, under ^y capture, the Milan decree, and after the seizure the cargo was discharged "^g cargo° and delivered to the consignees, upon their giviiig security to only, are not abide the event of the trial ; the court was of opinion that the a subject of expenses incurred by the captain, ' before he ceased to have ?;e"eral ave- charjre of the cargo,' were general average. But the subsc- quent expenses being incurred expressly on account of the cargo, were considered to be particular average. (2) The French ordinance(3) and code(4) provide that the ex- AVhether penses of detention, including wages and provisions, are to be chartering (he contributed for when the vessel is chartered by the month, but vessel by the , . T-k I • • 1 r I • T month has any not Otherwise, rothier attempts to give the reason or this dis- f.ff^^^ ;„ ^e- linction,(5) in which Emerigon thinks he has succeeded. (6) sjiecttoacon- Valin(7) says, it is not possible to assign the reason. The same tribution for distinction was proposed to the supreme court of New York, but ^^f ^detention! was not adopted by that court.(8) 332 General Average. Chap, XV. Section 6. Expense of Detention by Embargo. (1) Ins. Co. It has been decided in Pennsylvania, in a very elaborate case, Jone« 2* Bin ^^^^ wages and provisions, with other expenses, during detention 647-,'4Dall. by embargo, are general average.(l) But the current of au- 246. thorities is decidedly against this doctrine, and the reason as- ^^^o- "^ a" '^^^' ^'S"*^*^ ^^y J^eawes(2) for the distinction between this case and ragejic. p. ^^^^^ ^^ capture, for which he cites Ricardo and Adrian Verwer, 160. is, ' that in case of capture the crew remained on boar'd to take care of the vessel whilst they were endeavouring to reclaim her, and those expenses were occasioned with the sole view of pre- serving the ship and cargo for the proprietors ; but in the case of mere detention, there is no room for such a pretence, as the embargoing sovereign would not have cither ship or cargo, but only hinder their departure for some particular reasons.' But he adds, ' Nevertheless, it seems that both reason and justice require that the expense and wages of a ship's company de- tained in port by a prince's order, should be brought into a general average ; for if on one side the merchants who have laden her, are considerable sufterers by the delay, the ov/ners of the ship are not less so, more especially if the crew is large and the detention long.' It was decided in the time of Lord Mansfield, that the ex- penses of detention by embargo are not the subject of general average. The reasons given were, that there was no authority in favour of an average in this case ; that wages and provisions are never allowed in settling a policy on the ship, and that the insurance is on the body of the sliip, the tackle, and furniture, and not on the voyage or crew ; and accordingly, Mr. Justice /<9\T, I. I Buller said, the ship and tackle bcins^ safe, the court look no (3) Robertson ,. , t i tii /> i i i i P n r i • i • V. Ewer 1 T. I'JJ'thcr. Lord Mansrield stated that tlie allowance ol this ckiim R. 127. would be ' contrary to the constant practice. '(3) This doctrine has been pretty generally adopted, but it must, as it should seem, depend upon reasons different from those above stated, since those reasons apply to other cases of detention no less than to a detention by embargo. In respect to a claim of this description, including the possi- ble earnings of the vessel during the time of detention, the court in Massachusetts said, ' If provisions maybe taken to be in- cluded in an insurance upon the vessel and her appurtenances, yet such insurance is understood to be against accidents by which the vessel's provisions are destroyed or taken specilically M) .iiirtin r. jy^^j^j iheir proper use: lait not against an expenditure of them, halfnilnh. Co. ' ' ' t '^ , mi 2 Ma-is. lUi). even an extr.iurdniary expenditure.' i hese expenses were jiut 420. upon the same ground with the decay of the vessel. (4) A ship insured for a voyage from New York to Wilmington, in North Carolina, and thence to Dublin, was arrested by an embargo in the course of the voyage, and after a long deten- tion, an abandonment was made, and the expense of wages was flaimed in addition to the amount of a total loss. The court said, ^ In addition to a total loss the insurer is answerable only Sect. 8. Amount of the Contribution. 353 for the necessary expenses incurred in labouring for the safety (l) M'Bride and recovery of the subject insured. This contract reaches to J'; ^^^""i '"^* no other charge, and the detention of the crew was not neccs- 43]' c.^.^ sary for that purpose. The wages of the crew, during the de- also Penny v. tention by embargo, were not covered by a policy on the ship.'(l) ^'^^ ^^^^ Caines, 155. Section 7. Whether Contribution must be claimed in the first instance from the Parties concerned. It has been decided in Pennsylvania, that a shipper, whose goods are thrown overboard for the general safety, must in the rj s fns c first instance claim a contribution of the other shippers, and the 4' Bin. 502. owners of the ship and freight ; but if without any fault on the And see 1 part of the assured he fail to recover a contribution of these Emer.659. c. parties, he may recover of the insurers the whole value of the Marsk. Ins. goods thrown overboard.(2) But a different opinion has been 544, 546. given in New York, in the case of damage to corn by cutting away the mast. It was held that the assured might recover the whole damage of his insurers in the first instance, and leave ,<,. ,;, ,, 1 1 • ^ •\ ■ I- 1 1 1 • 11 (3) Masgrath them to claim a contribution irom the other shippers and the ,.. church. 1 owners of the ship.(3) The assured could not have recovered Caines, 196. for the damage to the corn as a particular average, this being one of the memorandum articles. But in the case of general average for reclaiming a captured (4) Jumel r. vessel and cargo, both belonging to the same owner, it was deci- ^^j'^j^'"^'.^"' ded that the assured could not recover the whole amount against ^nd see' ~' the underwriters on the vessel in the first instance, since he \\'illiams v. would be immediately answerable over to them again for his Lond. Ass. proportion as owner of the cargo.(4) 2^g " ' Where the contribution is due at a foreign port of delivery, it might, under some circumstances, be lost, unless it were claim- ed by the assured, or by his agent, the master, at that port. , . As far as the contribution is lost by such neglect, the insurers, it ^q\ g_ g3_ can hardly be doubted, would be discharged from their lia- (6) Val. tom. bility.(5) 2. 165. p. •^ ^ ^ 280; Emer. Section 8. Amount of the Contribution. 216 ; Code de Com. 1. 2. tit. In case of a sacrifice of a part of the ship or cargo, for the c^Z'^ gog .' general safety, no contribution is to be made unless the purpose 1 M'ag. 57. of making the sacrifice is effected ; and the contribution is made O) l^ig- 14. only by what is finally saved of the ship, cargo, and freight.(6) ?; ^-ixf ^^^'* But if the goods thrown overboard, or put into boats, for the gene- 5.19. ' ral safety, are saved, and the ship and rest of the cargo are lost, (8) Dig. 14. no contribution is to be made. (7) If however the ship escapes the *• ^ ; Code de peril, on account of which a jettison is made, and is afterwards iq™*^ "jg^ a wrecked, still, whatever is saved from the wreck must contribute 235 -, Q. for the jettison.(8) Weyts. s. 20. A distinction is to be observed between a jettison, and expenses Average for incurred for the general concern. Contribution for jettison is expenditures ° *' docs not de- 45 354 General Average. Chap. XV. (1) Infra, c 14. s. 9. pend upon the made Only in case something is finally saved ; but actual ex- the^ property. P^nditures in making a port to relit, or claiming captured pro- perty, or in repairing damages done to the ship for the general safety, are to be contributed for in general average, though both the ship and cargo are subsequently lost, and nothing of either finally comes to the use of the o\vner.(l) No reason can be given why such expenditures should be borne by one party rather than another. An exception is, however, made in prac- tice to this rule. If the funds to meet the expenditures are raised by hypothecation upon the security merely of the ship or cargo or both, nothing is considered to be due to the party whose property is hypothecated to raise the funds, unless the property arrives under such circumstances that the bond may be enforced. In case of funds to meet expenditures being raised merely by hypothecation, the claim for contribution for the expenditures, becomes subject to the same conditions as a claim for contribution for jettison ; it depends upon the arrival of the property. One reason for this practice is that the partj^ whose property has been hypothecated, has lost nothing, since the bond of hy- pothecation has not been enforced. Another reason is, that the lender, in consideration of the marine interest, takes the risk of the arrival of the property to the amount lent, for which all the parties concerned engage to pay him a premium, in case of the arrival of the property, since in that case they must contribute the amount of the marine interest. But, upon these reasons, if a part of the ship or goods hypothecated, is finally saved and goes in part satisfaction of the bond, the owner of what is saved would be entitled to contribution for the amount saved, and thus appropriated towards the discharge of the bond. In regard to disbursements which come into general average, the amount expended is, of course, the amount to be contribu- ted. The loss incurred by raising funds, is a part of the ave- rage ; as in case of the master's drawing bills at a discount. If it is necessary to hypothecate the ship or cargo to raise funds, the marine interest is included in the contribution, but this charge is not allowed if there are any other means of raising i'unds.(2) Sir William Scott says, 'The first and most obvious luiid for raising the money, is the hypothecation of the ship. But the foreign lender may refuse to lend upon the security of the ship, or on that security alone. The master not being able to raise money on that alone, what is he to do ? I conceive one of two things — to sell a part of the cargo for the purpose of applying the proceeds to the prosecution of the voyage, or to hypothecate the whole for the same purpose. '(3) The same necessity which authorizes the master to hypothecate, imposes upon the j)aiti('S concerned the obligation of paying the marine into rest. (4) As far as the loss of freight is to be made good by general average, the amount lost determines that of contribution. The fr-cight lost is contributed for at its gross amount; but only two thirds or some (jthcr ])roporlion of the freight saved, which is Amount of loss by Ex- penditures. (2) Jumel V. Mar. Ins. Co 7 Johns. 412. (3) ThcGra- titudinc', 3 Kolj. 240. (4) Sr.e ilcad*; V. Com. Ins. Co. :i Johns. :i(JO. Loss of freight. Sect. 8. Amount of the Contrihution. 355 considered to be equivalent to net freight, contributes. The /^x ^ jy^^^^^ freight lost by a jettison, is a subject of contribution, the state- 285.Cj.s.° ment of the average being so made as to include this loss.(l) xxiii. No. N. If the subject of contribution is damage to the ship, the amount Damage to of the damage is determined, as in case of particular average, ^^^ ship, hy that of the repairs, deducting a third new for old, where the repairs are actually made; and where no repairs are made, the damage is a subject of estimation. Where the value of the ship is to be contributed, in case of its loss by voluntary strand- ing, the measure of the loss is not the value at the commence- ment of the risk, as in case of a total loss under a policy upon the ship, but the value at the time when the ship is run aground. The value of the ship at this or that particular place is not the measure, as it is in regard to goods, but the incjuiry is, what it would have been worth to the owner at the time of its being run aground, if he could have had it in security, and free from any impending peril. , The rule adopted in one case, in Penn- sylvania, was the value of the ship at the commencement of the ,cy. q ^,_ voyage, deducting one fifth for diminution of value, by wear Wain, 2Ser». and tear, and decay.(2) This being the value at which the ship &; R-awle, 229. would have contributed, had it been saved, and a general ave- (3) Leaven- ,11 1 ' , ' . o. . worths'. Uala- rage had been made on some other account ; m coniormity to a ^eid i decision in New V ork,(3) it was held that it should be contribu- Caines, 573. ted for at the same value. The reason of adopting this rule was the supposed necessity of some general rule on the subject, but it is a very great objection to it that it would operate very unequally, since the diminution of value would be much greater, as the risk had been of longer continuance. The necessity of a general rule docs not seem to be so great as to require the adop- tion of one that would operate so unequally. If goods thrown overboard for the general safety, are re- Loss of goods, covered by the owner before a contribution in general average or damage to is made, the amount of the damage done to the goods by the them, jettison, and the expense of recovering them, is to be contribu- (4) Beawes, ted for ; and not their entire value.(4) ^^-^ ?VaT^' Where the whole value of the goods is to be contributed, a 2\2~, 1 Mag. distinction has been made in some codes, and by some writers, p. 56. s. 53. between a case of jettison before, and one after, half of the j^\^' ^^^fl^* voyage is performed ; making the invoice price the amount to casar.' disc. ' be contributed in the former case, and the price at the port of 46. n. 47; delivery, in the latter.(5) But no such general distinction is LesUs.tCou. made in England or the United States ; the price of the goods t![ ^^ ^l^' ^' contributed for is their value at the time and place in refer- ence to which the other goods contribute ; that is, goods con- tribute, and are contributed for, in general average, at the same rate. This rate will be subsequently considered. The laws of Oleron provide that, ' if a merchant ft^eights and Goods sold by loads a ship, and despatches her upon a voyage ; and that ship the master to enters a port, and is delayed there until her monies are. spent; r^-ise funds. the master may well take and sell part of the freighters Avine or merchandise. And when the said ship comes to her place 356 General Average. Chap. XV. (1) A. 22. See of discharge, the wines, which the master took, ought to be paid Wbb.T)^35. ^°^" ^^ ^^^^ i-ime price for which the other wines are sold.'(l) 68, 69 ; Cons. In respect to selling a part of the cargo for the purpose of del. Mar. c. applying the proceeds to the prosecution of the voyage. Sir dUnvers^a William Scott says, ' The books overflow with authorities. They 19 ; Code de ^^^ admit that he may sell a part ; some ancient regulations have Com. 1. 2. tit. attempted to define what part. The general law does not fix inq'^ ■^^*' ^' any aliquot part; and indeed it is not consistent with good sense to fix a limitation to measure a state of things which is to arise (2^ The G ^"'"^ ^^'^"^ necessity. The power of selling cannot extend to titudine, 3 ^^^ w/io/e, becausc it never can be for the benefit of the cargo Rob. 240. that the zuhole should be sold ;(2) since the voyage could then be prosecuted only with an empty ship. The authority of the master to sell a part of the cargo, at an intermediate port, in case of necessity, implies an obligation on the part of those interested, and on whose account the sale be- comes necessary, to pay for the goods at the price for which they would have sold in the port of discharge. The expense of raising funds falls upon the contributors in this case also, as far as the funds are raised on their account, since, in most instances, they pay for the goods at a higher price than that for which (3) A. 43. they were sold at the intermediate port. Jettison of The laws of Wisbuy provided, that if jettison was made of a goods, of the box containing gold, precious stones, or other very valuable com- ^'^l"^°* modifies, and the master had no reason to suppose that such master had no articles werc Contained in the box, contribution should be made notice. Only for the value of the box. (3) A similar doctrine is stated (4)Q. Weyts. in some of the old writers, who think that only the value of the ri'-'^'^lfl^'^^^Q^' goods, which the master might reasonably suppose to be con- LesUs&Cou' tained in the box, should be contributed for.(4) This question deiaMcr, 22; does not appear to have come under consideration in England Jug. oier. a. or the United States. 8. n. 22; Val. torn. 2. p. 202. tit. dii Jet, a. _ 12; Code de Sectiou 9. Ill rcfercTicc to what Time the Contributory Com. 1.2. tit. 1Z 1 ' T? ,• I 1 12. du Jet a. v alue IS rLstimatcd. 231. Contributory Thc amount of a contribution is assessed upon the different par- valuo in case j^j^,,^ j,-, proportion as they are benefited by thc sacrifice, or in- tures.^"^" '' tcrcsted in the expenses contributed for ; that is, in the proportion (M Dip. Do ^^ ^^'^^ value of their several intercsts.(5) Accordingly in case leg. Khod. i. of expenditures, the value, at the time of incurring them, ought 2.9.2. to contribute; this being the proportion in which the several parties are interested. ' It is most reasonable, says Mr. Justice (6) Douglas Scwall, fo estimate the vessel and cargo at their value in the Ma^s'^'i'le' ''^ ))l:ice and at the time, where and when the expense was incur- 564. * ' red.'(G) A vessel having been detained and subjected to expenses by raplure, Mr. .fiistice Jackson, giving the opinion of the court, said, ' As contrilmtioii is claimed as a recompense for services rendered, and not a compensation for property voluntarily sacri- Sect. 6. Time referred to in Rating the Interests. 357 ficed, the party who performed or paid for these services, was entitled to his recompense, although the ship should have been afterwards totally lost before completing her voyage. The con- (i) Spaflbrd tribution, therefore, must be adjusted according to the value Masg^lfepJ^ saved at the time when the expense was incurred.'(l) 79. But where security is given only by hypothecation, and the payment of the expenses is thus made to depend upon the event of the voyage, there seems to be a ground of distinction. Where the amount is so secured, independently of the personal responsibility of any of the parties, as it does not, according to usage, appear that any contribution will be due until something is finally saved, this is a reason for apportioning the contribu- tion on what may be finally saved, as in case of jettison. This is, however, a question of some doubt, and one that does not ap- pear to have been particularly considered. But where the sub- ject of contribution consists of disbursements, such as port charges, and expenses on account of legal proceedings in cases of capture, for which the ship, freight, and cargo, are liable to contribute ; since the parties become personally liable to pay those expenses as soon as they are incurred, it seems to follow that they are liable to contribute in the proportion of the value of their interests at that time. And it would follow, that where the average was occasioned partly by expenses, and partly by the sacrifice of a part for the general safety, that the apportionment should be different for these respective parts, in case the entire ship and cargo do not arrive at a port of discharge, or in case of a great change in the relative value of the difierent interests subsequently to the time of incurring the expenses. Where the captain defrays the expenses of putting into a port Whether of necessity, by selling a part of the cargo, the question occurs, goods sold to whether the average shall be considered to be due at the place raJeex^^^^" where the expenses are incurred, or at the port of destination ; penses, are to or in other words, whether, if the ship and the rest of the cargo be paid for, if are subsequently lost, the owner of the goods so sold shall be ^^f ^'^'P ^f, paid their value. According to the laws of Wisbuy, the goods j^g^ were to be paid for in such case.(2) There is no question of /^a a. 68. this, unless the ship and cargo are considered in efiect to be hy- pothecated for the value of these goods, and the right of the owner of them to be paid their value at the port of destination, is considered to be equivalent to marine interest. But the rule of the law of Wisbuy seems to be preferable, since the owner of the goods so sold, loses the claim which he might otherwise have against his underwriters, in case of the goods being lost (3) Dig. de with the rest of the cargo and the ship. But in case of the sub- leg. Rhod. 1. sequent loss of the ship and cargo, he ought to be paid for the ^j^^^ ^^^ goods, only at their value m the intermediate port Avhere they CasTxxv.' were sold. No. o. It is a rule, that a general average for jettison is to be appor- General ave- tioned at the port of delivery, whether it is the port of destina- rage for jetti- tion or any other.(3) And the several interests contribute ac- ^T?!if"^"^% cording to their value at the time to which the apportionment re- of delivery, lates, or when the contribution becomes absolutely due. 338 General Average. Chap. XV. Section 10. Contributory value of the Ship. Since the owners of the vessel are constantly incurring ex- (1) Laws of penses for the purpose of earning freight, they are benefited by Whb^40 a jettison only as far as the value of both the ship and freight, (2) Consul. £it the time of the apportionment, exceeds the amount of those del Mar. c. expenditures. Diiierent rules have been adopted for determi- 94; Ord. j^j^g ^}^g jygj. value for which the owners of the vessel ought to 3. tit. 8. du ' contribute. Some ordinances and codes gave the master the Jet, a. 7; choice of contributing on the full value of the freight or of the CodedeCom. vessel ;(l) Others require him to contribute for half of the value L^2, tit. 12. a. Q^ gg^^j^ ,^2) and others provide that the ship shall contribute (3) Ord. on its entire value at the time to which the apportionment re- Hamb.tit.2l. lates.(3) And this is the more convenient and just rule, since 2^7 -'k ^ v^b ^^^ expense of navigating the ship ought rather to be considered c. 8.' a. 33'- 2 ^ charge upon the freight, and ought to be deducted from that Mag. 207; interest on account of which it is incurred. Stockh. tit. Accordingly in England and the United States the ship con- Ma'c'^280 tributes on its full value at the time to which the apportionment See^Q. Weyt. relates. (4) In determining this value in adjusting an average of s. 24. the expenses occasioned by capture, the court in New York de- (4) Stev. P. ducted one fifth from the value at the commencement of the ^ 2. ' ' "^'oyage,(5) and the same rule has been adopted in Pennsylva- (5) Leaven- nia.(6) But no such rule has been adopted in Massachusctts,(7) worths;. Dala- and the expediency of any such rule is very questionable, since Cain ^ 573 ^^ ^^ arbitrary, and must necessarily be very unequal in its opera- (6) Gray v.' ^ion. It seems that this rule is not applied in New York, in cases Wain, 2 Serg. where the true value can be ascertained. In a case of the actual &Rawle,229. g^jg q( ^j^g ship, the contributory interest was held to be the amount for which she was sold.(8) The amount The valuc of thc ship, as a contributory interest, ought not, for which the however, as Mr. Stevens justly says,(9) to be determined in all soid^t^the^^ cases by the price for which she might be sold at the place place where where she happens to be, at the time when the contribution be- the contribu- comes due; since she might, according to the demand for ship- tion becomes pj^g there, and according to the place where she was built, all cases the '^c^'' ^ very low, or very high price. These are adventitious contributory circumstances, which ought not to affect the adjustment of the value. JQj^g^ 'pj^g (jucstion is, for what price could the owner afford to *. Moody o" sell the ship at the time ; and that price is the true amount of Mass. Rep. this contributory interest. It is not more difficult to determine 548 ; SpafFord this amount, than to fix that of thc insurable interest in a ship M-'«^"'\\' V(f insured in an open policy, which is not unfrequently done, (fi) I5eii f. This rule excludes from the amount to be contributed for, the Hinith, 2 diminution of the value of the ship by extraordinary sea-dam- JohriH. OH. jjgg^ .^nd other casualties, which constitute ol)jects of imdemnity ^ '' ' "'"^' under a policy of the usual form upon thc ship, and there is (10; lb. no question as to thc propriety of making this deduction ;(]0) since the ship, to the extent of such damage, does not arrive safe ; or, a part of thc ship to this amount is not finally saved ; and contribution is made only by what is finally saved. Sect. 10. Contributory Value of the Ship. 359 The same principle applies to a subsequent general average loss. The part of the ship's value saved by the first jettison, or other occasion of average, is the remainder, after deducting the contribution for the subsequent general average losses. The rule is general, and applies to all interests and all losses, in de- termining the amount of ship, freight, or cargo, that must contri- bute to any gross average, which depends upon the final safety of the property ; the amount of all subsequent general and par- ticular averages on the interest is to be deducted, since they arc either so much abstracted from the subject, and so not finally saved, or they are so much paid, and constitute a part of the ex- penses of saving the property. Upon the same principle, if the ship survives the peril on account of which a jettison is made, and is afterwards wrecked, but a part of its materials are saved ; ^^ Dodge r. only the value of what is saved, after deducting the expenses of 17 Mass. Rep. salvage, contributes for the jettison.(l) 478. The Roman law excepted from contribution the provisions Provisions and articles intended to be consumed on board. (2) But articles consumed, of this kind remaining on board at the time of the apportion- ^"^^ wear and ment, of those which were on board at the time of incurring the cay of the loss, constitute a part of the value of the ship saved, and so are ship. a part of the contributory interest of the ship. In regard to (o) Dis. de stores and provisions consumed before the loss was incurred, leg. Rhod. 1. they plainly do not form any part of the contributory interest. 2- ^- ^'^^"^ T^u * 1 . . -^ ^ , 1 +u J t a see Code de I he stores and provisions consumed, and the damage to the q^^^ j 9 tit. ship by wear and tear, and its deterioration by decay, between 12. du Jet, a. the time of the jettison and that of the adjustment, ought to con- 230. tribute only as far as they may be considered to be finally saved, and their being so considered, depends upon the vessel's earn- ing freight. If freight is eventually earned, the part abstracted from the value of the vessel, in the course of navigation, is saved, and comes to the use of the owner in the form of freight. This part of the value of the vessel ought, therefore, to be had in consideration, in fixing the amount upon which freight is to con- tribute. It is intimated in one instance that in case the ship is at a foreign port, Avhen the contribution accrues, the expense of bringing her home is to be deducted in estimating her contribu- -y/^i^ 2Serg. tory value. (3) But this is supposing her to come home empty, & Rawle, which does not seem to be a necessary supposition. 2o8. Where the average is occasioned by cutting away a mast. The damage or sacrificing any part of the ship, the amount to be contribu- contributed is led for such sacrifice, is to be added to the value of the ship at contributory the place of adjustment, in fixing the amount for which the ship value. is to contribute. It is a rule that where a contribution is made on account of the sacrifice of a part of the general interest, the part contributed for constitutes a part of the contributory inte- rest ; since otherwise the party whose property is sacrificed would be fully indemnified, while the other parties would pay away in contribution, a part of the^ value of what had been saved. 360 General Average. Chap. XV. Section 11. Contributory Value of Freight. The freight The freight pending at the time of the jettison or other sacri- pendingatthe fice contributes for the loss on the amount eventually saved.(l) time of the jj^ g^ ^.j^gg ^f salvage, Sir William Scott said, ' Whether salvage loss Rtld • ^ . . ^ finally earned ^^ ^^^ ^^ *-^^ freight will depend on the fact, whether freight contributes, was in the course of being earned. If a commencement has (1) Williams taken place, and the voyage is afterwards accomplished, the r. Lend. Ass. freight is included in the valuation of the property on which ^°'c^}r^^'J^ salvage is given.'(2) The same principle applies to contribution gi-ath V. ^^ general average. If the cargo has been delivered before a Church, 1 loss is incurred, and the freight has thus become absolutely due, a^'t^^' n ^' '^ ^'^^^ ^^^ contribute ;(3) and if a part of the cargo has been thy e^Rob"^"' delivered before the loss, only the freight of what goods re- 88.' See also main on board contributes.(4) Upon the principle that only The Progress, the freight pending, and in the process of being earned, contri- /s^'d'* 1i^*^' t)utes, Mr. Stevens says, that if the freight is advanced, and not r. Com. Ins. ^o be recovered back by the shipper, though the voyage should be Co. 11 Johns, defeated by perils of the seas, or any inevitable accident, the ^^^- freight, as such, does not contribute, since it was not in danger N Y ^Fk^m of being lost by any peril on account of which a jettison or Ins. Co. 11 other sacrifice is made.(5) Johns. 323. The circumstanccs which give a commencement to the inte- i%^' ox^^' ^^^^ '^^ freight, and the duration of this interest, have -been al- ('6)*Supr. 51*. ready considered ;(6) and if a general average loss occurs while this interest is at risk, it contributes, as far as it is eventually (7) Maggrath earned. If only freight pro rata itineris is earned, that only r'"o^^c''^i^Q«^ contributes. (7) Mr. Stevens says, 'On a ship chartered for the Cames, lUb. w i • "^ i i i ^ i- i i- voyage, and the average being settled at the port or loading, it s. 2. a. 3.*^' ' *s ^'^^ custom in Lloyd's to make the freight contribute. (8) But it does not appear upon what principle freight, as such, can con- tribute at the port of departure. If expenditures are incurred on account of the ship, cargo, and freight, for which the owners of these interests are personally liable in the proportion of the amount of the interests respectively, these expenses may be aj)i)oi-tioned upon the parties as a general average at the port of departure, or at any intermediate port, while the voyage is siill in progress, and while it does not appear how much, or (9) Supr.'p. whether any thing, will be eventually saved. But this, as we 356. s. 9. have sccn,(9) is a different case from that of a sacrifice of a j)art for the general safety, which is to be contribiUed for by what is finally saved; and it is very (luestionable whether any part of the freight can be considered as finally saved, at the port ol" (l('j)arturc.(«) (a\ See 1 Mag. 106. Cas. xii. No. I. ; Griswoklx). N. York In?. Co. 1 .John«. 205. 3 Johns. .321. Lord Mansfield's rule as to pro raC^ frei^^lit, in Luke v. Lydc, 2 Burr. 828, mis^ht make freight due at J ho port of departure, but that rule has been shown to be wronar, and r.iinnf)! bn said to bo in force. Abb. on Mcr. Ships, 306 n; Jacob- ficii's Sea-Laws, 268 n. Sect. 11. Contributory Value of Freight. 361 As contribution is made by that which is saved of what Expenses sub- might have been lost by the peril which was the occasion of a sequent to the sacrifice, and as the owner of any interest would have lost by J(;tiison,areto the peril only the amount finally saved after the deduction of expenses, the amount of the contributory interest is the value of the interest, after deducting these expenses. Freight is earned by the wear and tear and natural decay of the ship ; the wages and provisions of the crew ; and the port charges, pilotage, and other expenses attending navigation. But only a part of these should be allowed in estimating the amount of this contribu- tory interest. If freight is not earned, of course there can be no question in regard to its contributing. If it is earned, the deterioration of the ship by decay, and wear and tear, and the consumption of provisions and stores, which were on board at the time of the jettison, are the appropriation of so much of what Vv'as the value of the ship at that time to its intended use. Such part of the ship's value is finally saved, if at all, in the form of freight; and unless it is so saved, it ought not to contri- bute, since only what is saved contributes ; and it ought not to be contributed for, since it was not a part of the voluntary sa- crifice. It follows that no deduction ought to be made on these accounts in fixing the contributory amount of freight. But the wages of the men for the voyage, the expense of provisions and stores put on board and consumed after the jet- tison, and the port charges, pilotage, and in general all the dis- bursements made by the owner after the jettison, and as the means of earning the freight, are to be deducted from the gross amount, the excess being the amount actually saved out of what was at risk when the jettison was made, and accordingly such excess is the true amount of this contributory interest. Mr. Stevens says, ' There may be some doubt whether the master's n^p, j, ^^ I wages should be deducted ;'(1) but there appears to be no sa- s. 2. a. 3. tisfactory reason for this distinction. The circumstance that the master may insure his wages, although the men are not per- mitted to insure theirs, seems to be of no importance in regard to contribution. (a) Magens says, ' Only so much of the seamen's wages ought to be deducted from the freight, as may be due from the time of beginning to load ; for if any remained due on account of their outward-bound voyage, it was a debt owing to them, and must ,^s y^j^ ^ have been paid if the ship had been lost in coming home.'(2) 72. s. 58. (a) Though the seamen are interested in a jettison, since they are not entitled towages unless the voyage is performed, yet their wages are not brought into contrinution. Cons, del mar. c. 281. 293. But the mariners have been held liable to contribute for the ransom of the ship and crew. 1 Emer. 642. c. 12. s. 42; Valin, tit. des loyers, art. 20. who cites Dig. de leg. Rhod. 1. 2. s. 3. Si navis a piratis redempta sit, &c. Mr. Abbott seems to consider the rule to be in force in England, p. 346. P. I. c. 8. s. 14. But it can be applicable there, or in the United States, if at all, so only to a case of ransom from pirates. 46 362 General Average. Chap. XV. But it is evident, that if the freight for the outward and home- ward-bound voyages was pending, the wages of both voyages ought to be deducted. Freight is said to be the mother of wages, that is, wages are due only in case of freight being earn- ed. Therefore the whole of the wages accruing during the time of earning the pending freight, are a necessary deduction from its gross amount in estimating its real value ; and at what- ever stage of the voyage a jettison is made, this deduction is the same. Mr. Stevens says, ' Where the seamen Avere not only paid, (1) P. I. c. 1. hut hired by the month also, the case might admit of discus- ». 2. a. 3, sion;'(l) that is, if the wages did not depend upon earning freight, but were payable absolutely at the end of each month, the deduction from gross freight on this account might be differ- ent. If the men are so hired, and the ship is freighted for the voyage, the wages paid before the jettison, are upon precisely the same footing as the provisions and stores consumed before that time, in the ordinary mode of hiring the men, as well as freight- ing the ship, /or the voyage. That is, in estimating the amount of the contributory interest of freight in such case, no deduc- tion ought to be made on account of wages absolutely due be- fore the jettison or other occasion of contribution. Where a jettison or other sacrifice is made for the common safety, and the ship is afterwards wrecked, but the cargo saved, and the owners, to entitle themselves to freight, are obliged to (2) Dodge V. hire another ship to carry on the cargo to the port of destina- ^-'■J^^' ^' tion, in determining the amount of the contributory interest in 478. ^*^' freight, the expense of hiring another ship is deducted.(2) The excess of the freight for the entire voyage, over the amount paid to the substituted ship, is the gross amount of freight saved ; (3) See Mag- f^om which the deductions above-mentioned must be made, Church 1 i'^ determining the contributory value. In respect to the con- Caine8,'l96. tribution, this is precisely the case of only a ;5?-o rata freight(3) being earned, in which case, as in all others, the contributory value is found by deducting the expenses of earning the freight from the gross amount earned. All contributions to general average, and other expenditures incurred on account of the freight, subsequently to the jettison, are also to be deducted. Partial losses on freight abstract from it a certain part, and therefore lessen the amount earned, and thus diminish the amount of the contributory interest. Ac- cordingly, in case of a loss of a ))art of the cargo, whereby the ship fails of earning a part of the freight, the contributory in- terest is diminished. But as the freight of goods thrown over- board in jettison is allowed to the port of delivery where the a[)p()rtioruiKMit is made, this ])art of the freight is always in- cluded in fMtdiiig the amount on which this interest contributes. It accordingly appears, that to determine the true amount for which freight strictly ought to conlributc^in any jxirticular case, a vari(;ty of circumstances must be considered. The calcula- tion does not however seem to be attended with any very great dilliculty, since the facts u|)on which it must proceed may gene- Sect. 12. fVhat Goods Contribute, 8rc. 363 rally be pretty easily and satisfactorily ascertained at the time of the apportionment. Mr. Stevens makes no mention of any practice at Lloyd's of deducting any certain proportion of the gross freight earned, in fixing the contributory interest. But some ordinances pro- vide,(l) and the custom is in most places, that frei2;ht shall con- 0) ^"P""- tribute on a certain part of the gross amount earned. It is cus- ^^ th ^dT tomary in Boston and Baltimore to estimate freight, in the ap- field, i portionment of general average, at two thirds of the gross Caines, 572; amount earned. This rule is said to be most generally adopted H^^'^^'^ ^" in the United States. But in New York the freight contributes i^g Co.'n™ upon one half of the amount earned. (2) Johns. 85. In regard to average for expenditures occasioned by deten- Amount on tion in case of capture, where the property was released, it was which freight decided in one case, in Massachusetts, that the freight did not contributes contribute.(3) But this decision has been overruled and the i^'^detenticm freight held to be liable to contribute ;(4) and there seems to be by capture. no distinction between this case and others in regard to the (3) Douglas mode of estimating the amount on which it contributes, since the v. Moody, 9 whole freight, pending at the time, is considered to be saved as ^^^^- ^^IP' to the purpose of such a contribution, and it therefore contri- ('4^"spafford butes on its entire net value, that is, upon two thirds or one half v. Dodge, 14 of the gross amount, according to the usage of the place. Mass. Rep. 66. Section 12. What Goods Contribute and at what Value. As much of the cargo on board at the time of making a jet- tison or other sacrifice for the general safety, as finally arrives at the port of delivery, or comes to the use of the owner, con- tributes in general average. Magens says, ' What pays no freight, pays no average'.(5) whether only But Mr. Stevens says, ' It would be very unjust that the master, the goods or any other person, who had goods on board, should not con- which pay tribute because he pays no freight.'(6) Lord Ellenborough con- f''!;'^'^* ^°'^' siders this contributory interest to consist of ' the wares or car- go for sale, laden on board ;'(7) and Mr. Abbott says, ' The ^|^ Jte ^* ^' articles to contribute, are all merchandise, conveyed in the ship (6) p. i. C 1. for the purpose of traffic, whether belonging to merchants, to s. 2. a. 1. passengers, to the owner, or to the master.'(8) But it does not ^^}^ ^^^*' appear upon what principle the circumstance of the goods being (s)*?. 344. intended for sale, is of any importance in respect to their being See also liable to contribute. Marsh. 543. The Roman law made all the goods on board, including those L cJ^'j 1 11. 1 1 1 • 1 • ^^S- i»-hod. 1. belonging to passengers, and also their baggage, wearing ap- 2. s. 2. See parel, rings, and other ornaments, worn upon the person, liable ^'so Les Us to contri bu!e.(9) It seems that Magens, in saying that ' What m^^"^'^'^'^ ^^ pays no freight pays no average,' means to exclude from con- 26 ;\lolloy"* tribution only the wearing apparel and ornaments belonging to b. 2. c. 6. the person, since he says, ' If a passenger should conceal in his *• ^'^^ trunk, or about his body, any such considerable sum of money 364 General Average. Chap. XV. or jewels, as would not be suffered without paying freight, he must contribute to jeltison.'(l) Passengers Emerigon cites the difterent ordinances and other authorities baggage. upon this subject, and concludes, that of right, and upon general (1) Vol. 1. p. pi>inciples, every thing belonging to the passengers, even to their SeeLesi/sfc ^^'^aring apparel, is liable to contribute. He adds, however, Cout. de la that he has never known an instance of contribution on account Mer, Jug. of the clothes or jewels worn by a passenger, his trunks, or oier. a. 8. baggage, or the money in his purse. Yet he thinks that a court (2) Tom. 1. p. would be bound to allow such a claim j for, says he, ' The trunks 645. c. 12. of a passenger thrown overboard for the general safetj'-, must s. 42. be contributed for; and why, if they are preserved, should they (3) Tit. du ^g exempted from contribution ?'(2) Jet, a. 11. n. _^ ,. ,1^. . , , . ^ ' i • i • (4) Code de Valin(3) considers the wearing apparel, jewels, rmgs, orna- Cotn. 1. 2. tit. ments, and in general whatever a passenger habitually wears, Vt^^^ ^^*' ^' uses or carries about his person, during the voyage, including (5^1 Emer. ^^* change of linen, to be exempted from contribution by the 643. concurrent authority of the ordinances^ and writers. And this (6) Peters v. seems to be the general practice. But in regard to any other P k 2"n • P'^^'*' ^^ ^^^ ^'^gg^g^^ t^*^ exemption of it, in any case, seems MillaV, 244 ; rather to be a matter of favour than of right. If it is of suffi- Q.AVeyt. S.13. cient value to be worth bringing into contribution, no reason has (7) Tit. Con- been given why it should not constitute a part of the contribu- tnbution.n,!. ^ -^ . rpi c ,• • i i ' tory interest. 1 he reason tor excepting wearing apparel, and the like, seems to be, that the persons of those on board are not brought into contribution, and the exception extends to things which are merely accessory to the person. Goods on Goods, carried on deck, contribute in general average, though deck, goods of jf thrown ovcrboard in jettison, they are not contributed for :(4) the manners, -, , -, i • i V "ii • • .u • • • and p-oods ^'^^ ^° ^'^° "° goods Carried by the mariners in their privi- jetted. lege,(5) and so do the goods thrown overboard. Precious Gold, silver, jewels, and precious stones, and other articles metals, kc. of any value, of however small bulk, contribute to general ave- rage ;(6) and Weskett even seems to think that bank-notes ought (8) Les Us k to constitute a part of the amount upon which the average is Cout. de la assessed ;(7) but as these are not so properly, actual property to Mer, p. 20. jj amount promised to be paid, as the evidence of demands, JuiT. (>ler. c. ... . , i , 1-11 1 • /- 1 • 1 • 8. n. (J. wliich evidence may be supplied by other, m case ot their being (9) Tom. 2. p. lost, if suOicient precautions are taken by the holder to prove 184. tit. des -what particular notes they were ; this circumstance suftlciently (lof Peters*?', distinguishes them from specie or other property, which is usually Miiiigan, made to contribute. Park, 211. Jt ^yas formerly a maxim that goods of the king, that is, of the h'''Vhod''r government, should not contribute to general average.(8) But 2. 8. 2. * ' Valin thinks there is no reason for this exception. (9) Goods of Goods contribute according lo their value, however small their whatever bulk may be in })roportion to tluMr valuc,(10) for a hrst principle kindcoiitri- ^f general average is an apportionment of the contribution upon thdrval'uc. the value saved, this being the proportion in which the parties arc benefited. (1 1) Goods, as well as ship and freight, contribute upon their value lo the owner at the time to which the apportionment relates ; Sect. 12. W}iat Goods Contribute, 8^c. 3(55 and this value necessarily depends upon the place where ihey Goods contrl- are considered to be finally saved, since that is their value at ^"^^ ^°^ ^^^^^ the time to which the apportionment relates. If they are sold ^f^"^to^hich at such place, the amount of the proceeds is the basis on which the apportion- that of their contributory value is calculated ; but if they are ment relates. not sold, the inquiry is, of what value they are at such place to the proprietor, after the deduction of all charges. If the same kind of goods bears a price current at the place in question, that is the basis of the calculation of the contributory interest ; but if there is no price current, the value is a subject of estimation, or they contribute upon the invoice prices. If the average is adjusted at the port of destination of the goods, the market price is usually the basis of the calculation of the interest, but if at any other port, as it must be in case of the cargo being deliver- ed at difterent ports successively, the invoice price is often con- sidered to be the contributory value. In case of contribution for expenditures, the amount contri- buted by each party is the same, whether the whole contributory interest is put at a high or low rate, provided it is all put at the same rate. But in this case it may be of importance as to the amount to be recovered of the insurers, whether the valuation is high or low. In case of jettison, a high valuation of the whole contributory interest evidently operates in favour of the party to whom the contribution is due, whatever part of the contribution may be assessed upon his own property, and a low valuation operates against him ; and vice versa as to the other parties. The contri- bution ought, therefore, to be apportioned upon the true value. The goods contribute for the value saved, of what was at risk p^eieht and at the time of the jettison. All subsequent averages, whether other charges particular or general, and all expenses of salvage, are deductions upon the from the contributory interest, since they abstract something of ^°°^® ^^^ the subject, or constitute charges upon it, and accordingly so much of the value of the goods as these amount to, is not finally ^^^^ °^^' saved, and therefore does not contribute.(l) If the adjustment Louage, n. is made upon the value at the port of delivery, the apportion- 132 ;"Casar. ment is made upon the net proceeds, after deducting the freight ^7 n'/^"'^n^*"' that becomes due in consequence of delivering the goods, 47^^ also the duties, wharfage, storage, commissions paid on the sales, and all other expenses ; since the value received by the owner, or that which is eventually saved by coming to his use, is the true amount of his contributory interest. The premium of in- surance is not deducted, since that must have been paid though the goods had not arrived. Where the advance upon the invoice price of the goods is just equal to the freight and charges, it is the same thing whether ' the goods contribute upon that value, or upon the net proceeds. Since in many instances the result of each mode of computation is very nearly the same, and also on account of the facility of adjustment, the apportionment is often made upon the invoice value. Either party may, however, require an apportionment to be made according to the value at the time and place to 366 General Average. Chap. XV. which it relates; the invoice value being assumed only for con- venience. Where an adjustment of an average for expenditures or com- (^)J^°"s'^^ promise in case of capture, is made on the value at the port Mass°°Re'p. where the detention takes place, a question occurs whether the 548. freight is to be deducted in estimating the value of the goods. (1) The inquiry in such case should be, what the owner of the goods would lose by their condemnation. And it is plain that he would lose the amount for which they could be sold at such port, deducting expenses, and the freight to that port; or he would lose the proceeds at the port of destination, deducting the expenses and entire freight for the whole voyage. But this last mode of computing the value is liable to one objection, since if the goods subsequently arrive at the port of destination, the market may have changed ; and as the goods may never arrive there, it involves a great inconvenience in computing the value. The real value is the proceeds at the time and place in reference to which the average is adjusted, which is the net proceeds at that place, or what would be the net proceeds in case of a sale, after deducting expenses and freight to that place. This mode of adjustment is conformable to the principles upon which general averages are settled in other instances ; it is always practicable ; is the most convenient ; and effects an ap- portionment upon the real value. It regulates the contribution by the market price at the time and place to which the adjust- ment has reference, and adjustments are generally made in pur- suance of this principle. Whether the ^^ ^ase of adjustment upon the invoice value, a question occurs premium is to whether the premium of insurance is to be included. It seems be included ^j^^t no general rule can be laid down in this respect, since if coods^contri- ^^^ premium is to be considered a part of the cost of the bute upon the goods at the port of shipment, (which indeed it hardly can be,) invoice value, the Other parties to the contribution have no concern with the actual cost of the goods, which may have been purchased at a very high or low price, and this is the owners gain or loss, by which the other parties ought not to suffer, or be benefited. They are strangers to the invoice ; their rights depend on the actual value. Since the first cost of the goods is adopted as the contributory amount, for convenience, and by inqilicit consent, the including or excluding the premium, rests uj)on the same grounds. 'J'hcre does not apjiear to be any established custom in this respect, but it seems to be the more prevalent practice to jncludo the premium. Section 1 3. LiahiUbj of Insurers to Pay Contributions. As far as a general average is occasioned by perils insured against, the insurers arc liable for it to the amount insured. IJiit since the value of the ship, as between the parties to a policy, is its actual or agreed value at the commencement of the risk or port of drj)arture, and that of the goods is the actual or Sect. 13. Liability of Insurers, 8{C. 367 agreed value at the time of shipment, it is evident that the in- surers cannot be affected by their value as contributory interests in general average, since the respective values in the two cases have reference to ditferent times and places. And though the 0) 1 Mag. value of freight is less liable to vary in the course of the voyage, ^^^'^^% '^' yet the insurers of this interest are not bound by the estimation Mag. 339. No. which determines its amount in contribution.(l) 1286. n. Mr. Justice Sewall said, 'The insurer is liable in the proper- The insurers tion which the sum insured bears to the actual value,'(2) at the are liable to time in reference to which the apportionment is made. But he [,ut"ojJs"Jiy" was speaking of a case of the contributory value exceeding the on the part of value in the policy, for the proposition is not correct where it is the value in- less. There is no difference, in this respect, between a valued sur^^d. and open policy, for though the whole amount at which the in- (2) Clark r.^ terest is valued in the policy, is covered, yet the parties have }^'"*c^'^*' agreed that, as between them, the value shall be of a certain jyiass. Rep. amount, and accordingly the insurer ought not to be liable to 365. refund a contribution made upon a greater amount. This is not setting aside the valuation, but adhering to it. If the value of the property, as between the parties to the policy, is 1000 dollars, and half of that amount is covered by the policy ; and the same property contributes to general average on the amount of 1500 dollars, the insurer is' liable to refund 33i per cent only of the contribution, though 50 per cent of the value of the property, as between the parties to the policy, is insured. But if the property contribute on 500 dol- lars, the insurer is liable to refund half of the contribution, since this indemnifies the assured on the amount covered, and he can ask no more. Whatever is paid in contribution, by the excess of the contributory value over the value in the policy, is paid by the assured, but for whatever is paid on a contributoiy value not exceeding the value in the policy, the assured is indemnified (3) i Mag. to the amount insured.(3) 245. Cas. xix. It has been made a question, whether the insurers are bound Adjustmentin by an adjustment of a general average, made in a foreign port, a foreign port. Tavo reasons have been given why they should be bound by such an adjustment ; firstly, the master is obliged to adjust the average at a foreign port of delivery, and since the insurers have the ad- vantage of its being adjusted more favourably to themselves than it would have been in the place where the policy is made, they ought to be subject to the risk of its being adjusted more unfavourably ; secondly, where the adjustment is made under an order of court ; the decree of a court, on a subject of which it properly has jurisdiction, ought to be conclusive upon the parties. Insurers accordingly, in some instances, agree to refund [j^^ Petapsco contributions legally made in a foreign port.(4) And it is the ins. Co. Bait, more general practice to settle losses in conformity to adjust- ments made in a foreign port of delivery, according to the usages and laws of such port, as far as the occasion of the con- tribution is a peril insured against. A general average was adjusted at Pisa, under the decree of the court there, in which the estimate of the ship and freight 368 General Average. Chap. XV. (1) Newman V. Cazalet, Park, 630. See Walpole V. Ewer, Park, 629. (2) Power v. Whitmore, 4 M. & S. 141. (3) Lenox r. Unit. Ins. Co. 3 Johns. Cas. 178. (4) 1 Caines, 673. (.0) Strone; v. N. Y. Fir.m. Ins. Co. 1 1 Johns. 'Sl^J. was different from what it would have been in England, and the wages and provisions were included, which, according to the de- cisions of the English courts, constitute no part of the average. In an action brought upon a policy on the cargo, Mr. Justice Buller said, ' I do not like these foreign settlements of average, which make the underwriters liable for more than the standard English law.' But he told the jury, if they were satisfied that it had been the usage to settle according to the foreign adjust- ment, the usage ' ought not to be shaken. '(1) In respect to an average adjusted at Lisbon, in which wages and provisions were included, contrary to the practice in Eng- land, Lord Ellenborough, giving the opinion of the court, said, ' This contract must be governed, in point of construction, by the laws of England, unless the parties are to be understood as having contracted on the foot of some other known general usage among merchants, and shown to have obtained in the country where, by the terms of the contract, the adventure is to terminate, and where the average would come to be demand- able.'(2) And no such usage was considered by the court to have been proved in this case. Insurance being made in New York, on pipe staves, ' on deck and in the hold,' it became necessary, in the course of the voyage, to make jettison of the staves carried upon deck ; and arbitrators at Lisbon, the port of delivery, determined, that ac- cording to the laws and usages there, the staves thrown over- board from the deck, should be brought into the average. The court said, ' the owners of the cargo under cover, ought not to contribute to the jettison of the goods on deck. It was decided differently at Lisbon, the port of destination, and the law there is stated to be otherwise, but the parties to this contract must be considered as having in view the laws of this state.'(3) Insurance was made in the same state upon rice, flour, and pease, on a voyage from Philadelphia to Lisbon. After the de- livery of a part of the cargo at Lisbon, it became necessary, during a storm, to cut away the greater part of the vessel's rig- ging and spars, on which account an average was adjusted there, and apportioned upon the ship, the part of the cargo remaining on board, and upon the freight of that part. According to the esti- mate of the contributory interest at Lisbon, the average was about lOh per cent, but in an apportionment made according to the rule adopted by the court in New York,(4) the contribution would have been a little over 13 percent. Mr. Justice Living- ston, giving the opinion of the court, said, 'The general ave- rage once being made, and the amount of contribution between the owners of the ship, freight, and cargo, ascertained ; it ap- pears, at least, nothing aj)peai's to ihc contrary, that the under- writers had been held liable for such amount. I'here is no principle more firmly established than that they are bound to return the money which the assured has been obliged to ad- vance, in C()nsec|uencc of any peril within the policy, provided it be faii'ly nnd honestly paid, and does not exceed the amount of the subscrii)tion.X'^j) Sect. 1. On the Ship. 369 These opinions shew the difficuhy of the question ; without, however, seeming to present any principle upon which it may be satisfactorily settled. As far as custom is an authority, it settles one point ; since it appears to be the general practice to consider the apportionment of the average among the several interests to be equally binding, wherever the adjustment is made. But as far as the amount, assessed upon the property insured by such an apportionment, is made up of losses or charges, which are not the subjects of contribution at the place where the policy is made, some insurers, at least, consider themselves not to be liable to refund to the assured the contribution. They would not, for example, consider themselves liable to indemnify the assured on goods against his contribution for the expenses of detention by an embargo, under an adjustment made in a French port. "^ CHAPTER XVI. PARTICULAR AVERAGE, OR PARTIAL LOSS. Section 1. On the Ship. A PARTICULAR AVERAGE is a loss bomc wliolly by the party Particular upon whose property it takes place, and is so called in distinction average de- from a general average, for which diflerent parties contribute. ^^^^' A particular average is also called a partial loss^ whereby the insurers are liable to pay for damage happening to the thing in- sured, or expense incurred exclusively on its account, and oc- casioned by the perils insured against, in distinction from a total loss, whereby the insurer becomes liable to pay the entire value at which the subject is insured, as far as it is covered by the policy; not as an indemnity for expenses or deterioration in value, but as its price, and as a purchase of the interest. (a) It has already been considered for what losses, or for what effects of the perils insured against, the underwriters are an- swerable.(2) Of these losses, those which do not belong to ^2) Supr. general average, as above described, are, of course, particular c. i3. average. In this description of losses are usually included the (a) A question has been made as to the propriety of the above use of the word average. Park, 160; Stevens, P. I. c. 2. p. 73. But it seems to be a suthcient reason for using the term in the above sense, that it has been so used ever since insurance came into prac- tice ; that its meaning is definite ; and that this mode of expression is often very convenient. 47 370 Particular Average, S;c. Chap. XVI. (1) Code de Com. des Av. 1.2. t. 11. a, 218; Bullerr. Fisher, 3 Esp, 60. Marsh. Ins.B. I.e. 12. s. 2. (2) Supr. 337. Wages and provisions during delay to repair. (3) Dunham r. Com. Ins. Co. 11 Johns. 315. (4) Sage r. Middletown Ins. Co. 1 Con. Rep. 239. Wages during detention by embargo. Deduction of one third, new for old. [h) \r Bride t'. Mar. Ins. Co. 7 Johns. 431. the casual splitting of sails, parting of cables, springing of masts, loss of boats, breaking of the upperworks or any part of the ship, damage by stranding, damage by lightning, or by acci- dental lire, loss by plunder while the property is for a time in the hands of captors or pirates, damage by running foul of other ships, or being run foul of,(l) and according to a case be- fore cited,(2) the damage sustained by the ship in an engage- ment with an enemy. All casual and inevitable damage and loss, as distinguished from that which is purposely incurred, is particular average, unless it amount to a total loss. These losses when they are occasioned directly by the perils insured against, and without any fault of the assured or his agents, are to be paid by the underwriter on the subject insured. The expense of wages and provisions of the crew during de- tention, has been considered not to be a part of a particular average on the ship. A vessel on a voyage from New York to Liv^erpool, having received considerable sea-damage, afterwards, on the 31st October, encountered a violent storm, which she at- tempted to ride out at anchor, but it became necessary to cut her cables and run her ashore at Hoylake. On being lightened she was got off, and brought up to Liverpool on the 7th of No- vember. All the cargo was discharged by the 31st of Decem- ber. The vessel could not have its turn to be put into the dry docks, for repairs, before the 20th of February, and her repairs were not completed until the 24th of March. It was contended that the underwriters on the vessel should pa}'', not only for the repairs, but also for the Avages and provisions of the seamen, and other expenses, during the detention. Chief Justice Thomp- son, giving the opinion of the court, said, ' The expenses for wages and provisions cannot be brought into general average. They were not incurred for the benefit of cargo or freight. The cargo had been delivered, and the freight was earned, be- fore the expenses w'ere incurred. And if these expenses can- not be brought into general average, I do not see hoAV the un- derwriters on the ship are to be made liable for them.'(3) And it was held in Connecticut that this expense was not recoverable of the insurers on the ship, though the men w^re employed during the detention in making the repairs-(4) It has been held also, tiiat ' the wages of the crew during de- tention by embargo, are not covered by a policy on the ship. '(5) In case of a partial loss on the ship, the underwriters are lia- ble to pay for the damage sustained, the amount of which is calculated upon the expense of repaii's, in case of the owner's choosing to repair the shi|), otherwise the amount of the damage is a subject of estimation. It is considered that where old timbers, or other materials, arc re|)laced by new, the vessel, when repaired, is better than she was before the damage was sustained ; and accordingly it is held that the assured must him- self pay a part of the expense of the repairs in proportion as the ship is made better. Mr. .Justice Story says, if the difierence bcween ihe value of the vessel when repaired, and her value before the damage, Sect. 1. On the Ship. 371 ' were to be ascertained in each particular case, by actual in- spection and estimates, there would be no end of controversies; , and therefore general usage, which the law follows as founded Merchants' in public convenience, has applied a certain rule to all cases. Ins. Co. C. C. It is true here, as was observed by Lord Mansfield upon another ^. S. -^«ss.^ occasion, that it is of less importance how the rule is settled, Mason's liep. than that it should be setded-Xl) * Whatever general rule is adopted, it will evidently operate with some inequality, as a new ship may not be so good after being repaired, as she was before sustaining any damage ; whereas an old one may be better. The rule is, that the assu- red shall pay one third part of the expense of labour and ma- terials requisite to make the repairs, and shall recover only two thirds of the underwriters ; it being considered that, in general, the ship is belter by the amount of one third of the expense of the repairs. This allowance is called the deduction of one third ncivfor old, Mr. Stevens says, ' It is customary to deduct one third from the new materials and labour, unless the ship be perfectly new, t. e. on her first voyage, or the materials sacrificed be perfectly ^^^F/q ^'^' new.'(2) The exception of the first voyage seems to have been ^2) Wesk. tit. always made in England.(3) But it has been distinctly held in Repair, n. 1. Massachusetts and New York, that the allowance of one third (4) Nickels r. new for old is to be made, though the vessel be new, and on her M^'fns Co' first voyage.(4) And this is the construction of the rule which n Mass. R. is most generally adopted in the United States. But in the case 253; Dun- of damage to the sheathing of a vessel newly copper-sheathed ^^J^ '• ^^°™* at Baltimore, which it became necessary to copper-sheathe again joims. 315. on her arriving at Charleston, the insurers paid the expense without any deduction. This adjustment was not made, how- ever, upon the ground of any definite exception in respect to the first voyage. The deduction of a third is never made from the cost of a new anchor. But it seems that there is no other exception made to the rule on account of the kind of article lost or dam- aged. The deduction is made from copper-sheathing, copper and iron fastenings, or a chain-cable. The old matei-ials, such as copper-sheathing, cables, &:c. Deduction of which are replaced by new, belong to the insurers, as far as proceeds of they are liable for the amount of the partial loss. The proceeds oi'^ materials. of such old materials are, therefore, to be deducted from the amount for which the insurers are liable ; that is, after the de- duction of one third new for old. The rule of deducting a third, extends to whatever may be j^-q deduction considered to be a part of the repairs. If commissions are is made ex- charged by a merchant, in a foreign port, on funds advanced cept on the by him to pay for the repairs, or if marine interest is paid upon «''^P<^"s<^ of a bond of hypothecation for the amount, or if expenditures of niateiials. any kind are incurred directly on account of the damage to be repaired, but not as the price of the materials or labour for the repairs, or replacing what has been lost, the assured recovers 372 Particular Average, 8{c. Chap. XVI. the full amount of such expenditures as far as the subject is covered by the policy. In what man- The expense of the repairs, and the amount of the cxpendi- nerthepro- turcs, occasioned directly by the perils insured against, being poriiouof a ascertained ; their sum constitutes the amount of the loss. The for-whicMhe insurer must pay the same proportion of this amount, that the insurers are sum insured is of the whole amount of the insurable interest, liable, is estl- Jf the underwriter has agreed to insure one half, or one quarter ^^^ ' of the amount of the interest, he must pay the same proportion of the expense of repairs. This is all very plain, but then a very important question occurs as to the mode of estimating the amount of the insurable interest ; since the greater the value is at which the amount of the interest is fixed, the smaller will be the sum which the insurer is liable to pay on an amount in- sured which is less than that value. If 1000 dollars is insured in an open policy, on a ship worth 2000 dollars at the commencement of the risk, which sustains a partial loss of 500 dollars at a subsequent period, when her value is diminished by wear and tear, and decay, and the con- sumption of provisions, to 1500 dollars, shall the underwriter pay 50 per cent, or 66| per cent, of the loss ? According to the practice, he pays 50 per cent ; that is, the value of the ship at the commencement of the risk is the basis on which the par- tial loss is estimated. A similar question occurs in respect to a valued policy. If 1000 dollars is insured on a ship worth 2000 dollars, but valued in the policy at 1000 dollars, sustains a partial loss, amounting to 500 dollars, must the insurer pay the whole loss or only 50 per cent of it ? A reason for his paying the whole loss is, that he has insured the whole value of the ship. But a reason why he should pay only half of the loss is, that, as between the par- ties, the agreed value of the ship is 1000 dollars, and since only one half of the ship is destroyed, and to be rc})laced, he ought to pay but one half of her value as between him and the assu- red. And this is the rule adopted in practice, and sanctioned by the courts under the maxim of opening the policy in case of partial loss. A contrary doctrine would involve the inconsist- ency of paying for damage to a thing, or the loss of a part of it, more than the parties had agreed to consider the whole of it, as (1) Saltus r. between themselves, to be worth. Ocean Ins. Co. 12 Johns. 107; Schief- r, • i feiinr. N. Y. Scctiou 2. 0)1 1' reipnt. In?. Co. 9 Johns. 21 ■&' F frciht ^ partial loss on freight is occasioned by the loss of the LosrofTpart ship after a part of the voyage is performed, which makes it of the cargo, nccessary to hire another ship to cnrry on the cargo to the port of destination in order to earn the freight ;(1) or a loss of a part of the cargo, whereby the ship is prevented from carn- (2) Supr. 290. -^^^ .^ ^,,^^j ^j- j^^^. jVdght.(2) Only freight VVhcrc on account of the perils insured against, only freight pro ra/a tarn- ^^^.^ ^^^^^j -^ earned, this is a case of partial loss upon this in- Sect. 2. On Freight. ' 373 terest. Mr. Justice Putnam, giving the opinion of the court, says, ' If the ship should have carried the goods to a port within one day's sail of the port of destination, but should be disabled, by the perils in the policy, from completing her voy- age, the assured would be entitled to recover for the loss. Jn such case, if the assured should have received ninety per cent (i) Coolidge for carrying the goods so far as the port where the ship was '.;. ^^°"*^^^|.^'^ obliged to stop ; it would be evident that he had a right to re- is^Mas"! Rep! cover only for a partial and not for a total loss.-(l) 345. If goods arrive in bulk, though, in consequence of sea- (2) Lutwidge damage or otherwise, they are of no value, still the whole ^"^^^y^and freight is due,(2) and accordingly the assured on freight has no others, Abbott claim for any loss. And so, if the supercargo or captain sell on Mer. Ships, goods at some intermediate port, short of that for which they ^^S- were shipped, on account of sea-damage, deterioration occa- sioned by the qualities of the article, or other cause, which might probably diminish or destroy the value in the subsequent part of the voyage, but still leave them remaining in bulk, the entire freight to the port of destination will be due on such ar- ticles, since the master of the vessel is ready to carry them on ; it being a rule that the whole freight will be due, if the goods remain in such a state that they can be transported to the port of destination, and the master is ready to carry them thither. If the ship is wrecked in the course of the voyage, and the Pro rata master either has not the means of carrying, or does not offer, freight. or is not ready to carry the goods to the port of destination, (3) Story's and the shipper consents, himself or by his agent, either ex- '^}'}'^V-' ^f'' pressly or by implication, to receive his goods at the interme- prickig j'acob- diate port ; only freight /»ro ratci is due.(3) sen, 268. n. If in consequence of sea-damage or any peril insured against c^se of sale in the policy on the freight, and without the fault of any party, of damaged some part of the cargo would be destroyed, both in value and goods at an m- bulk, before the arrival at the port of destination, and on this ^^ account is discharged and sold at some intermediate port, or if (4)stevensoa the article, as in case of damaged vegetable substances, would av. p. I. c.2 be likely to produce disease if kept on board,(4) the case seems s. l. p. 81. to be very similar to the preceding, which has been held by all the courts to be one of pro rata freight, — in each case the mas- ter is not able or is not ready to carry on the goods, and the shipper may reasonably be presumed to consent to receive them at an intermediate port, provided the pro rata freight does not exceed their value. And if it be considered that only freight pro rata is earned, it becomes a case of particular average. But the loss must, for this purpose, arise from a peril insured against. In cases of the sale of goods at an intermediate port, however, the whole freight is usually allowed, and in most instances there (5) Jones f. can be no question of its being due, as it cannot appear that the ^^^'^^'jf goods might not arrive at the port of destination in bulk. 046. It has been intimated in some instances that the expenses at- whether the lending a detention by embargo or other cause, constitute a par- expenses of ticular averasfe on freight :(5) no deliberate opinion seems, how- detention are , ^ f3.'v/ , . rn 11 xL a partjcular ever, to have been ever given to this enect, but the contrary has 374 Particular Average, Src. Chap. XVI. average on been explicitly decided by different courts. Mr. Justice Liv- freight. ingston, of New York, speaking of the expense of wages and (1) Henshaw provisions during a detention, said, ' As these expenses occasion V. Mar. Ins. ^l diminution of freight only, that subject alone must be con- 279 " See aT>o sidercd as loser, and its underwriter, if there be any, called on the opinion of for indemnity. '(1) But the other judges did not express any the same such opinion. j^dge, 2 Under a policy on the freight of a ship detained at Bour- and also " deaux by an embargo, the freight being subsequently earned, M'Brider. the assured claimed the amount of the expense of wages and Mar. Ins. Co. provisions during the detention, as a particular average. Chief ohns. . justi(;.g Tilghman, giving the opinion of the court, said, ' That this loss cannot be recovered from the insurers on the freight exclusively, may be strongly inferred from the nature of the contract, which engages that the freight shall not be lost, and in fact no part of it has been lost.' Rush, president of the court, said, ' To render an insurer liable, the loss should happen to (2) Ins Co of ^^^ property or interest specitically insured. Neither the in- K. A. r. Jones, Surer of the ship, cargo, or freight, is liable to pay the expenses 2 Bin. 547. of an embargo.'(2) In a case of insurance upon freight, the vessel was captured in the course of the voyage, and detained two months : being released, she pursued the voyage and earned freight. The as- sured claimed a particular average on account of the detention. Chief Justice Parsons said, ' The underwriters did not insure an}'^ particular time in which the voyage should be performed ; but only that the freight should be earned. They are there- (3) Mayo r. f^j.^ j^^j answerable for a partial loss, on account of the increased Ins. Co. 4 length of the voyage by the detention, any more than they Mass. Rep. would have been if the arrival of the vessel had been delayed 374. \^y violent storms, which had driven her out of her course.'(3) For what part The amount for which the underwriters are liable, in a par- of a partial lial loss of freight, is computed in the same manner as a partial loss on freight j^^gg ^^ ||^g ship, cxccpt that the amount of the insurable inte- the underwri- . i i i -i • c i ter is liable. ^^^^ ^^ "^^ calculated neccssarily in reierence to the commence- ment of the risk. If a part of the original cargo is discharged in the course of the voyage, or lost by inevitable accident, the amount of this interest at risk is thereafter less. Where the sum insured, whether in a valued or open policy, is less than the value of the interest at risk when a partial loss happens ; the underwriter pays the same proportional part of the loss, that the sum insured is of the value of the interest at risk; but if the sum insured is equal to the value at risk, he pays the whole of the loss. 'i'here is no didiculty, it seems, in adjusting the amount of a partial loss on freight, since the whole amount of the interest is definitely fixed by the hills of lading or charterparly, or, in case of the ship and cargo belonging to the assured, the amount is determined by estimation, according to the current rate of freight for the same voyage, and the whole amount of the inte- rest and that of the loss being ascertained, the rate ])er cent of th(; loss is readily found. In case of partial loss on this interest Sect. 3. On Goods. 375 the insurer does not take the risk of the responsibility of the shipper or consignee ; he docs not guaranty that the part of the freight earned shall be paid ; he is exonerated as far as the freight is earned, and it is only in case of total loss and aban- donment, whereby he is put in the place of the assured, that he takes the risk of recovering of the shippers or consignees the part of the freight which is earned. Section 3. On Goods. In case of the destruction of a part of the goods, the under- writer pays their value according to the invoice or valuation ; and the rule is the same in case of the loss of half of the value of the goods by sea-damage or otherwise, though they remain in bulk. Except in one case, which will be mentioned, the un- derwriter has nothing to do with the state of the markets in ad- justing a particular average on goods, the amount of which will be the same, whether the goods come to a losing or gaining market. The insurer does not engage to make good all which the assured has failed of gaining in consequence of the perils insured against, but only what he has lost of the value insured, hn y. Supr. that is the invoice price or valuation.(l) c. 14. A particular average is usually adjusted at the port of de- Partial loss by livery. If the loss is occasioned by the entire destruction of a the destruc- part of the goods insured, the insurer is liable to pay for them, '^"j^g J^ods'^ as far as they are covered by the policy, at the price at which they are insured, and such a loss is easily adjusted, there being no diflerence of opinion or practice respecting it.(2) (2) Supr. 313. If the particular average is occasioned by damage to the goods, whereby their value is diminished, though they remain in bulk, there seems to be but one, and that a very plain way of estimating the degree of damage. If in consequence of the damage the goods sell for only half what the same goods would have sold for if sound, the direct loss by the damage is lifty per cent, and the insurer must pay, not half of the price of sound goods at that market, but half of the value at which he insured the goods. This is too obvious to admit of any doubt. (o) (a) Lewis v. Rucker, 2 Burr. 1167 ; Johnson v. Shcddon, 2 East, 581 ; Hurry v. Roy. Ex. Ass. Co. 3 B. & P. 308 ; Ushers. Noble, 12 East, 639; Dick v. Allen, Park, 167 ; Lawrence v. N. Y. Ins. Co. 3 Johns. Cas. 217. In insurance against fire the insurers usually stipulate in the policy Partial loss in to pay the whole of any loss which does not exceed, the amount in- insurance sured ; that is, if 1000 dollars be insured on furnilure, goods, or a against fire. house worth 2000 dollars, and damage happen by fire to the amount of 1000 dollars, the insurer pays for the whole damage ; whereas, according to the principles of adjusting a partial loss un- der a marine policy he would pay for but half of it. In a policy on profits or commissions, it is frequently agreed to Partial loss on adjust any loss at the same rate as on the goods. In case of damage pro.'its and to the goods, or the destruction or absolute loss of a part of them, commissions. 376 Particular Average, ^c. Chap. XVI. Whether the loss by pay- ment of full freight on da- maged goods is within the policy. (l)VoI. l.s. 38. p. 39.& p. 214. cas. xvi. Whether loss by duties, Sec. on damaged goods is within the policy. (2) Ut Supr. An adjust- ment on the net proceeds is not correct. But a question still occurs which has caused much discussion and perplexity. Magens thinks that the loss by payment of full freight on damaged goods, is to be included in an estimate of a partial loss. He supposes the goods to be damaged fifty per cent in value, without any diminution of their bulk, and ac- cordingly that the full freight is due at the port of destina- tion.(l) Suppose that the goods, if they had arrived sound, would have sold for 1000 dollars, but arriving in a damaged state, though undiminished in quantity, they are sold for 500 dollars, the freight being 100 dollars. By the damage to the goods, the assured has lost fifty dollars in the freight, since he paj's 100 dollars to place the value of 500 dollars in the mar- ket ; whereas, had the goods arrived without damage, he would, at the same expense, have placed the value of 1000 dollars in the same market. Magens thinks that this loss ought to fall upon the insurers. The same question occurs in relation to wharfage, duties, &c. in case the assured has to pay more on the damaged goods in proportion to their value, than he would have been liable to pay had they arrived sound. Magens(2) has involved this question in great perplexity by saying, that in order to cover these losses, the particular average ought to be adjusted on the net proceeds, according to the rule of computing the same kind of damage in adjusting a general average. It will readily appear that the calculation upon the net pro- ceeds will not be correct upon any principle whatever. Sup- pose the invoice value of goods insured, in an open policy, to be 500 dollars, of which the freight and other charges in question are 200 dollars. If the goods had arrived sound, the gross sales would have been 1000 dollars, but being damaged they sell for only half of that sum, and yet the freight and other charges in (juestion are supposed to be the same. According to Ma- it is plainly a loss of the same proportional part of the profits, and if it be so considered, a loss of this sort would be adjusted at the same rate on each, though the policy should contain no stipulation ill this respect. Loomis v. Shaw, 2 Johns. Cas. 36. But it does not appear that a loss on the goods by expenditures or general ave- rage, is a loss iinder a policy on profits or commissions, unless it be made so by express stipulation. But the profits being, as Lord El- Icnhorough says, an excrescence on the goods, the insurers of this interest ought, upon {)rinciple, to be liable for a proportion of the expenditures incurred on account of the goods, since these are the expenses of labouring, k.c. for the safety of the subject, and to pre- vent a total loss of the profits. But in some instances the expenses are wholly paid by the insurers of the goods, where the value of the goods, on account of which the expenditures are incurred, does not exceed their value in the policy. And where the expenditures are not wholly refunded by those underwriters, it is difiicnlt to adopt any general rule as to the rate of aj)portioning these losses under a policy upon the profits. For these reasons a policy upon pro- fits ought always to contain an agreement as to the adjustment of partial losses. Sect. 3. On Goods. 377 gens's rule, as it is understood l)y Mr. Justice Lawrence, from /-^n or a statement of a loss made to thecourt,(l) the insurer would he 5^4" '" ' liable to pay five-eighths of 600 dollars ; since, b^^ this mode of computation, the amount of sales of the sound goods would be 800, of the damaged goods 300, and the difference of these com- pared with the gross sales of the sound goods gives the rate of damage. Mr. Justice Lawrence shows the incorrectness of this rule very clearly, since the deductions remaining equal, the propor- tional difterence of the proceeds of sound and damaged goods will be greater, if the goods come to a losing market ; or in other words, the particular average, for the same damage will be there- by increased.('2) This shows conclusively that the mode of (2) Ih. computation is erroneous. But the real question is, whether the loss occasioned by the liowihecom- payment of the same freight, duties, &c. on a smaller value, on puiation account of the damage, is a consequence of the peril insured ''"?^ttobe against, for which the underwriter is liable to make indemnity. i,y ivJight, If it be assumed that this is a consequence for which the insurer &c. is aiciu- is liable, an adjustment on the net proceeds will not give in- ^'-''*- demnity. The most that can be demanded for the assured, is, that the loss shall be adjusied upon a comparison of what' he actually receives, the goods being damaged, with what he would have received had they arrived sound. Assuming the invoice value, the proceeds of the sound and of the damaged goods, and the amount of freight and duties as before, the assured receives 500 dollars less on the gross sales than he would have received had the goods arrived sound. Had the goods arrived sound he would have received 1000 dollars gross proceeds by paying 200 dollars freight, duties, &c. and as he paj's the same sum, to place half of the value in the market in the case of damaged goods, he loses comparatively 100 dollars in freight, duties, &c. This makes the loss six-tenths of the invoice value, instead of five-eighths according to the rule of Magens ; that is, a propor- tional part of the freight and charges should be added, cor- responding to the rate of loss by direct damagCcto the goods. Here a question occurs, whether all these losses are to be Whether loss placed upon the same footing; the loss in freight takes place J^-^^^^'g'^^^"** Avhile the eoods are water-borne, or at least at the moment they ^w.^it'^o,^ 11 ii'- r I'll- " Lficirjjes are are landed, and m virtue or a contract to which the insurance equally ihe necessarily has some relation ; and the loss is pretty certain; consequences whereas the loss by duties is uncertain, depending upon the rules ''^ ^'^^ P^^'l- adopted by the government in levying duties; it occurs on land (3) Johnson rather than at sea, and seems to have a very remote relation to ''; -heddon, 2 the contract of insurance. In regard to the loss arising on ac- m^wV count of duties, port charges, &c. after the arrival of the vessel, Roy. Ex. Ass. the court of King's Bench decided, explicitl}'-, that they are not Co. 3 B. & p. subjects of indemnity ;(3) and this opinion was followed in the ^^^* Common Pleas.(4) The same opinion was given in New York ^ N.^yy^ns*^^ a few months after the first of the preceding cases was deci- Co. 3 Johns, ded. but before the decision was known in New York. (5) Cas.2i7. 48 378 Particular Average^ ^c. Chap. XVI. All of these cases involved the question of loss by freight; but the English courts did not consider this question particularly, and in regard to the loss by duties 'and charges, they took for granted thai it was not covered, without any elaborate con- sideration of the reasons in support of the doctrine. Their at- tention was mostly confined to the question respecting the mode of computing the loss, and the weight of the authority of their opinions bears mostly upon that point. The case decided in New York very distinctly presented the question of loss by freight, as well as duties and charges. Mr. Justice Thompson said, ' 1 am of opinion that the underwriter ought to pay the proportion of the prime cost, corresponding to the proportion of the diminution of the gross sales. The other mode of calculation appears to me to be making the underwriters indirectly answerable for the freight, duties, and charges, with which they have nothing to do.' Mr. Justice Kent's opinion turn- ed mostly upon the incorrectness of the rule of computing accord- ing to the net proceeds. But proving this rule to be wrong, does not necessarily prove that the insurer is not answerable for the loss by freight, duties, and charges; and the loss on these may be included without involving any of the consequences which prove the incorrectness of this rule, excepting one mentioned by Mr. Justice Thompson. He says, ' the underwriter never ought to be made liable to pay more than a total loss,' and the compu- (1)5 Johns, tation upon the net proceeds ' would in many instances make 1219, 220. him pay more than a total loss.'(l) But it has already appeared that he may be liable for more than the value at which the (2)Supr. 329. whole property is insured,(2) which value is what the judge means by a total loss. But the question of the liability of the insurers for the loss by freight, duties, and charges, on damaged goods, Avas presented in all these cases, and the result of the opinions was an exonera- tion of the insurers from this loss. The reasons in favour of this result, in respect to the duties and charges in port, seem to be very strong, since nothing prevents the adjustment of the loss at the moment of unloading the goods, when the risk ceases, without taking into consideration the loss arising from the reve- nue laws, port regulations, expenses of wharfage, drayage, sto- rage, &c. which seem to be remote consequences of the damage. They arise more directly from the regulations of trade, and the revenue laws, and the disposition which the consignee chooses to make of the goods, than from the damage to the goods. It is not a part of the understanding, lietwcen the yiarties to the policy, that the goods arc intended to be sold for consumption at the port of destination. Nothing prevents the consignee from tran- shipping without hinding them, if the laws of the port permit it; and in that case the (luestion as to loss by duties, in that pai'ticu- iar port, is not likely to arise. The comprehending this loss among those insured against, evidently leads to considerations very remote from the jn-rils rnumeraled in the policy. In regard to the loss by freight, it has been held that in some cases the insurer of the goods is liable for the excess of freight Sect. 3. On Goods. 379 which the assured is obliged to pay in consequence of the pei-ils insured against.(l) But in those cases the extraordinary freight (l)Supr.239. paid, may be considered a part of the expense of labouring, &c. for the preservation of the property, and to prevent a total loss by the breaking up of the voyage ; and the underwriter ex- pressly stipulates to pay such expenses. The court in New York said, that the expenses of a ' sale at auc- Expense of tion to ascertain the injury the cargo had received, and limited sales at auc- to such parts as were damaged, Avould be a reasonable charge.' ^^°^- It Avould be allowed, however, only in case of its being neces- (2) Muir v.^ sary, in order to adjust the loss. (2) Mr. Stevens puts this charge , l"*' "^" ^°' 1 •' 1 ) ^ r r ■ ^ 1 • 1 ^^ ^ Caines, 54. upon the same grounds as that oi Ireight, duties, and other (3) Part. Av. charges. (3) If ^ pro forma, sale at auction is made for the pur- s. 3. a. l. p. pose merely of adjusting the loss, the expense is very similar to i^^-"- that of a survey and appraisement for the same purpose, and seems to be a part of the loss. But if the goods are actually sold, or intended to be so, and are wholly or in part, bought in by the assured, merely because he does not think the price offer- ed sufficient, there does not appear to be any reason for consi- dering the expense of the sale as a part of the loss. The as- sured would have been at this expense had the goods all arrived sound. If different articles are damaged, the loss ought to be adjust- ed on each, separately ; since otherwise the adjustment will be erroneous, unless the degree of damage is the same on all, or, which would "hardly ever happen, the difference of the invoice (4) Stevens, amounts, and the difference of the degrees of damage, should ^'^; ^^^i'^' reciprocally countervail each other in the computation. (4)(fl) p^ \^2. A particular average is usually adjusted at the port of des- . .. , tination, and when it is adjusted there, the mode of adjustment is average ad- alvvays as above stated. But if it is adjusted at some other justed at a port, the mode of adjustment depends on the reasons for making Fj"'**^!^^^/ it at any other than the port of destination. The assured may destination, put an end to the risk whenever he pleases, by voluntarily re- ceiving his goods short of the port of destination. If he re- ceive his goods at any intermediate port, on account of a fa- vourable market there, an average loss is adjusted upon the same principles as at the port of destination. And it does not appear that he has not a right to such an adjustment, if he chooses it, for whatever reason the goods are received by him (rt) The following examples will shovv the incorrectness of com- puthig losses on different articles together. Invoice Sales of Sales^ being Rate per cent Jlmount of value, sound. damasked. of loss. loss. Coffee, 250 500 260 60 150? „_r Cotton, 300 100 25 75 225 \ ^^ Coffee, J ..y gQQ 2.2- g^ 1-2 343 2-3 Cotton, ^ Thus the loss on both articles being computed separately, is 375 dollars ; but computed on both together, is 343.66. And a similar error would result from computing the amount of damage on differ- ent sorts of the same kind of article, invoiced at different values. 380 Particular Average, ^r. Chap. XVI. and withdrawn from the risks insured against, short of the port of destination.(a) A salvage But in case of damage by sea-water or other cause, where los«. the damage would be increased by iceeping the goods on board, and the goods might be rendered of little or no value on arrival at the port of destination, they are sometimes sold at some in- termediate port. The reason of selling them at the interme- diate port is not to take advantage of the market there, but to prevent their being spoiled and totally lost, in consequence of damage by the perils insured against. ' In such cases, though (1) Stevens, the property is not abandoned to the underwriter, the principle r-''^- of abandonment is assumed and acted upon.^l) The loss is adjusted in the same manner as if the goods had been abandon- ed, in which case the insurer pays for them at the invoice price or valuation, and is entitled to whatever is saved_, after deduct- ing all expenses including that of freight. The net proceeds are in the nature of salvage, and this is accordingly called a salvage loss. A cargo was compulsorily taken away from the master of a vessel by the officers of the government, at Port Republican, in St. Domingo, in exchange for some specie, and such a quantity of goods as they had a mind to give him. As the assured, not having made abandonment, was not entitled to recover for a total loss, a question occurred as to the mode of adjusting a partial loss. The invoice price of the goods taken from the master w^as 12,041 dollars. The value of the specie and goods given to him in exchange was, at Port Republican, 10,162 dol- lars. The proceeds of the same goods in New York, deducting duties and charges, and adding the amount of specie, were 8,667 dollars; but deducting also freight from Port Republican to New York, were 7,919 dollars. The only question made, was, which of these three sums must be deducted from the invoice value, it being taken for granted that one of these differences was the amount of the partial loss. The court decided that the value, at Port Republican, of the goods and specie received in exchange, was the true amount saved ; and that the difference (2)Suydamf. of the two first sums, namely 1,879 dollars, was the amount of Mar Ins Co t^c loss.(2) 2 Johns. 14J. , ^ ^ 111 11 -111 It was assumed by the court, and the parties, that the loss was to be adjusted as a salvage loss. If it be supposed that the amount of goods and specie, given in exchange for the cargo at Port Republican, depended at all upon its value there, which seems to be altogether probable, this mode of adjustment threw the risk of the market uj)on the insurers, since the lower the jjrice of the cargo was, the smaller would be the amount of specie and goods given in exchange for it. 8u[)pose the value of the cargo at Port Repul)lican to have been dou!)le the invoice price, and the officers of the government there had taken the whole (a) Mr. Stevens says, a ])articular average cannot be adjusted in the usual rnodo, sfiort of tli(? j)ort of destination ; tit. Farlic. Aver, p. I. J). oO. but it does not apposir why it mwy not. Sect. 3. On Goods. 381 cargo, giving in exchange goods or money of half its vahie. According to the above mode of adjustment the assured would in this case have lost half of his goods, and yet not have been entitled to recover any thing of his underwriters. If the loss had been adjusted in the usual way, by comparing the market price, with the value given in exchange for the cargo in the com- pulsory sale, and thence finding the amount lost upon the invoice value, it would have given the assured the advantage of a gain- ing, or the disadvantage of a losing market, and have exempted the insurers from any risi? of the market. A question similar in princij)le occurs in relation to expenses what pro- incurred, or a compromise made, on the separate account of the portion of ex- ship or cargo, or any part of the cargo. Expenses of the de- penses which scriptions in question, arc' most frequently subjects of general particular a- average, and accordingly if any interest contribute on a value verage, the exceeding that in the policy, the contribution on the excess falls insurers ought upon the assured. The same rule ought evidently to be ex- ^'^P^y- tended to expenses incurred on a separate interest, which con- stitutes particular average, since the master, or other person, hav- ing charge of the property, is necessarily governed by the value of the property at the time of the transaction, in determining on the amount to be given by way of compromise, or incurred in expenses to save the property. The agent must in such cases do what is prudent and advisable, and what a person not insu- red would do under like circumstances, and in determining what to do, he would of course be governed by the value of the property at the place Avhere it should happen to be at the time of the transaction. And in case of compromise with captors, or of salvage, the captors or salvors are governed by the same value in fixing the amount of their claim. It would plainly be unreasonable that the insurer should be liable to pay the whole of the expenses, the amount of which is de- termined by considerations foreign to his contract. Accordingly, if the value of the property, at the time of the transaction, ex- ceeds its value in the policy, the sum which they are liable to pay, should bear the seme proportion to the whole amount of the expenses, that the value in the policy bears to the value oa account of which the expenses are incurred. 382 Total Loss and Abdndonment. Chap. XVII. CHAPTER XVII. TOTAL LOSS AND ABANDONMENT. Section 1. In what cases ^/Abandonment is necessary in order to give a Claim for a Total Loss. A. TOTAL LOSS is oiie by which the underwriter is liable to pay Total loss de- for as much of the subject as he insures, at its value in the fined, policy. In adjusting the amount of a total loss, the only ques- tion is, what is the value of the subject in the policy. In a partial loss the underwriter is not liable to pay the entire value, as such, at which the subject is insured, and to the amount in- sured. In adjusting a partial loss it is always necessary to in- quire, not merely what is the value of the subject in the poli- cy, but also what is the rate or degree of damage. Abandonment A total loss gives the assured a right to abandon. An aban- may be made donment is an act on the part of the assured, by which he re- m case ot to- bnquishes and transfers to the underwriters his insurable in- terest, as far as it is a subject of the policy, or the proceeds of it, or the claims arising from it. In considering what circum- stances give the assured a right to abandon, we shall ne- cessarily consider what constitutes a partial, and what a total loss. Where the assured has no rigbt of property, as in the life of a person on whom he depended for support; and where the subject is so completely destroyed and lost, that the assured has no rights, or claims, or advantages, in consequence of his pro- perty in it, as in the case of goods consumed by fire, or a lottery ticket that has drawn a blank, it is not rec]uisitc that he should go through with any form of transferring his interest to the in- (l)Park, surers, or make any offer to this cffcct.(l) In case of the 228. n. ; 8 ' destruction of the whole subject, the ceremony of abandon- (S?John;. rnent would be idle.'(2) 155. The thing insured being irretrievably lost, the assured has a Technical or right to recover the value at which the whole or any part of it constructive was iiisnrcd ; and the amount recovered will be the same total loss. whether the loss ])c treated as partial or total, — whether the in- quiry be what value was insured merely, or that, and also what is the amount of damage, for they are both the same amount. But if the property or any part of it survives the peril, as in case of shipwreck, without a total destruction of the thing in- surefl, or of detention or capture before condemnation ; or if any rights or claims remain to the assured as ownei' of the pro- perty, as in case of a claim for remuneration of damage against those who have seized the properly, it is just that he should transfer lo \hr. underwriters the remains of the propcrt}'-, or the rights accruing to him as owner, in case of his receiving of them Sect. 1. In what case ./Abandonment is necessary, 8rc. 383 the amount insured. Losses of this description are called tech- nical or constructive total losses, in which an abandonment ought (l) 1 f . R. to be made, in order to give the assured the right of recovering Martini? ^'^° the entire value insured. ' Where any part of the property has Crockatt, 14 been saved, the assured cannot recover as for a total loss, unless East, 465 ; he abandon.'(l) EdwaKi'.' 12 Mr. Justice Buller intimates a doubt, whether abandonment East, 491! should have been permitted at all, and says, that ' about the whether the year 1745 that question was determined, after much delibera- right of aban- tion.'(2) But in cases of capture and detention, insurance would donment is to afford a very inadequate indemnity to the assured, without the ^^ favoured, right to abandon, and in many cases of sea-damage, the indem- ^,%^'**^^^i! nity would be long delayed and very difficult to adjust. Lord ^ ggg' Mansfield said, ' in late times the privilege of abandonment has been restrained for fear of letting in frauds.'(3) (3) Goss v. Mr. Justice Story says, on the contrary, ' It has been said, ^,!^l^^l^^2^ that abandonments are not to be favoured ; that they have been liable to great abuses ; and that courts of law are not disposed (4) Peele ». to enlarge the practice. I am very much inclined to believe Merch. Ins. that of late yeai's this consideration has had quite as much weight g% Oct' as it deserved. '(4) 1822. 2'Ma-* The assured has his election in all cases, whether or not to son. ** make abandonment ; ' all the books agree that he is never obliged The assured to abandon.'(5) ' The object of abandonment is to turn that has an elec- into a total Ibss which would otherwise not be so :X6) and the t'onwhether 1 , III -111 11 /-to abandoa or assured may choose whether he will change the character 01 jj^^ his claim against the insurers by making an abandonment. In some cases however, he will have no claim against the insurers unless he makes an abandonment ; in others he may recover for a partial loss, without abandonment, or abandon and recover for a total loss. In a case of seizure of the vessel of which freight was insu- ^he ship be- red, and an action brought by the assured without any abandon- ing stranded ment, ' Chancellor Lansing said, ' The assured, by his delay, has ^"^ ^^^^ "^ Avaived his right of abandoning, so far as might operate to con- of^rei°hria^ vert a partial into a total loss, and has left the insurer the chance considered of enjoying any advantage, arising from the restoration, before necessary. the time of bringing his action.' But as the loss continued to be (5) 8 Johns. total at the time of bringins; the action, he thouffht the assured 244; Allwood • 1 , r-^N ''• Henckell, might recover.C?) _ _ Park, 280 -,1 In case of the insurance of freight from Quebec to London, Johns. Cas. the ship, before leaving the river St. Lawrence, was stranded 313; 2 Johns. about 90 miles below Quebec, in so dangerous a situation that ^^^- ^p^/^ ^ .. .. • 1 Burr 1211 the captain was held to be justified in selling the ship and car- (6)Gracie'v. go, without making any attempt to get the ship off for the pur- N. Y. Ins. Co. pose of prosecuting the voyage. On receiving intelligence of 8 Johns. 183. the disaster the assured communicated it to the underwriters, gteinback^k and claimed a total loss, but did no act which was considered Caines' Cas. by the court as amounting to an abandonment of the freight. 174. And the court said, ' We do not think it was necessary to aban- W ^^^ '• don.'(8) There seemed to be nothing in this case upon which CofsMoore' an abandonment might operate. 115. 384 Total Loss and Abandonment. Chap. XVII The ship be- ing disabled and broken up, an aban- donment held necessary. (1) Bell V. Nixon, 1 Holt, 423. (2) lb. 426. n. (3) Green v. Brown, 2 Str. 1199; Newby V. Read, Park, 106 ; Twem- low V. Oswin, 2 Camp. 85; Brown r. Neilson, 1 Caiues, 525. Whether in case a vessel is not heard from, a total loss may be recovered for ■without aban- donment. (4) Cambre- linsr.M'Call, 2 Dall. 280 ; S. C. 2 Yeates, 281. (5) Gordon v. Bowne, 2 Johns. 150. Whether in case of cap- ture a total loss may be recovered for without aban- donment. (C) Watsonr. Ins. Co. of N, A. 1 Bin. 47. C7) IJrown v. l*h(X;ri. Ins. Co. 4 Bin. 445. A ship having sailed on a voyage from Hull to Quebec, and received considerable damage, was compelled by bad weather to put into Limerick, where she could not be repaired for want of materials and docks, and she Avas too much disabled to be removed to another port suitable for making repairs. She was accordingly broken up there. Upon the question, whether the assured could recover for a total loss without abandonment, Dallas, J. said, ' In some cases he may claim a total loss without abandonment. But, if the case be doubtful, the assured ought not to take upon himself to determine for the underwriters — to break up the ship, and to call upon them for a total loss. I think he should have communicated to them the state of the vessel.'(l) The whole court were afterwards of opinion that an abandonment was necessary to entitle the assured to a total loss.(2) If the vessel is not heard from for a long time it is considered to be totally lost by perils of the seas.(3) A vessel that sailed from N. Carolina for St. Thomas's, was not heard from for six years after the time of sailing, and it was held that an abandon- ment was not necessary in order to entitle the assured to recover the amount insured. Chief Justice M'Kean said, ' We cannot see that, where there is nothing left to give up, there can be any thing to abandon. It would be useless to insist on a formal act of abandonment. "(4) In the case of a vessel that sailed from N. Carolina to New York, and was not afterwards heard from ; Chief Justice Kent said, that, ' after the lapse of a year, considering the voyage, the presumption that the vessel had perished was reasonable.' And considering it as proved that the whole subject had perished, the time of the trial of the action being four or five years after the sailing of the vessel, he said ' the ceremony of an abandonment would have been idle.'(5) So in a case of capture and condemnation of the property, the assured brought a suit to recover the loss without having made any abandonment ; Chief Justice Shippen said, ' Where any part of the thing insured is left, the assured is bound to abandon in order to enable him to recover as for a total loss ; the only penalty for not abandoning, is, that the assured must be satisfied with an average loss.' And the court was of opi- nion that the assured might recover, lca\'ing it to thj jury to esti- mate the value of the chance of the reversal of the sentence of condemnation, and the restoration of the property. Mr. Justice Brackenridge, however, thought that if there had been any rea- sonable prol)ability of recovering tlie ))ropcrty, — if the chance was worth any thing; the assiu-cd ouglit not to recover the loss without abandon men t.(G) In a subsecjuent case. Chief Justice Shippen seems to have changed his opinion, and considered an abandonment requisite in such case. And Mr. Justice Brackenridge said, if abandon- ment was not necessary in such a case, in order to enable the assured to r(!Cover, he did not see that it was so in any case whatcver.(7) It seems to have been the o[)inion of one of the Sect. 1. In what case Abandonment is necessary, S^c. 385 judges in England, that abandonment was necessary though the ship and cargo had been sold and converted into money, when *■, u|^°f^^f°" notice of the loss was rcccivcd.(l) ^',^^1^' «yi.n.' But in a case of the seizure of the property, by officers act- Property seiz- ing under the Swedish government. Lord Ellenborough said, edby a ' The general convenience of making an abandonment has led foreign go- to an opinion that it is more necessary than it really is. A party is not in any case obliged to abandon, neither will the want of abandonment oust him of his claim for that Avhich is, in fact, either aii average or a total loss, as the case may be. Where there is an abandonment, the risk is thrown on the un- derwriters ; where there is no abandonment, the party takes the chance of recovering according to his actual loss.' And ,^. ,^ ,,. , the court was of opinion that the assured in this case might re- j,. Audrews cover according to his actual loss.(2) 15 East, 13. Under a policy upon salt-petre imported from India, which -phe cargo was condemned at the Cape of Good Hope, and sold in pursu- sold under a ance of the sentence of condemnation, which sentence was re- decree of con- versed on appeal. Lord Ellenborough said, ' As to abandonment, anTthe'de- if instead of the salt-petre having been taken out of the ship cree reversed, and sold, and the property devested, and the subject matter lost to the owner, it had remained on board, and been restored at last to the owner, 1 should have thought there was much in the argument that, in order to make it a total loss, there should have been notice of abandonment, but here the property itself was wholly lost, and the necessity of abandonment was altogether shedden^is'' done away .'(3) East, 3U4. Chief Justice Kent says, ' This court has repeatedly decided that abandoiimcnt is not essential to enable the assured to re- cover a total loss, if the loss be actually total, and continue so (4)2Caines, to the bringing of the suit.'(4) But Mr. Justice Livingston, of 208. the same court, speaking of a case in which the master was compelled to sell the cargo at a reduced price, said, '' though it be settled with us that an abandonment is never too late while the loss continues total ; yet we have not said that a suit can be (5-) j Johns, maintained without any abandonment at all. '(5) But this posi- 191. tion seems not to be strictly accurate, since some of the pre- ceding cases show that the assured may recover for a total loss without making any abandonment. It accordingly appears to be ihe opinion of all the judges of the different courts, that in case of the destruction of the property, the assured may recover the value insured without any abandonment. But what circumstances, short of the absolute destruction of the property, will constitute such a loss of it as will entitle the assured to recover the whole value without aban- donment, seems to be a matter of some uncertainty. Where the only thing remaining to the assured, is the chance of re- covering property captured or arrested, Avhere there is any pro- bability at all of recovering it, it seems reasonable to require an abandonment, or that the assured should claim only for a total loss ; since, as Mr. Justice Brackenridge remarks, an esti- mate by the jui-y of the value of the chance of recovering the 49 3«6 Total Loss and Abandonment. Chap. XVII. (1) 4 Bia. 472. In what cases abandonment must be made of freig-ht to recover for a total loss. (2) Green v. Roy. Ex. Ass. Co. 1 Marsh. Kep. 447; 6 Taunt. G«. (3) >rCar, n^ board. The assured were not to wait till ships could be had. ,,. Newnhum The insurance is that the ship shall come to London. Upon I'ark, 2C0 •, turning this case in every view the court are of opinion that the ^^''^'^^!-',' voyage was totally lost.'(l) 624.' iT ^^^' Jt has been held, in New York, to be a total loss of the ship, if, „ by the perils insured against, she is rendered unfit to carry her dered unfit to original cargo, though she may be able to carry one that is lighter carry on her and more buoyant. The poHcy v/as on a ship from Batavia to original cargo. New York, in the course of which voyage the ship was obliged to put away for St. Christopher's, where, after being twice survey- ed, she w^as condemned and sold, as unfit to be repaired for the purpose of proceeding on the voyage. She afterwards carried a part of a cargo of rum and molasses to New York, and might have carried a full cargo of rum, which was more buoyant than the cargo brought from Batavia. Mr. Justice Radcliff, giving the opinion of the court, said, ' The question is not whether the vessel be in a capacity to be repaired, so as to prosecute her voyage with half or any other portion of her cargo, but whether she is capable of proceeding, or of being refitted to proceed, and carry the whole. A vessel is not seaworthy unless she be in a condition to carry a full cargo. The vessel was insured to perform her voyage, and carry her cargo, from Batavia to New" York. This she was disabled from doing. The enterprise therefore failed by means of the perils insured against, and the ^~^ Abbott r. assured has a right to abandon.'(2) Caiaes 292. The ship being abandoned at sea by the crew, on account * y^- u • of sea-damage and the danger of navigating her, does not give deserted by the assured a right to abandon, after she is brought into port by her crew is other persons in a state to be repaired. A ship insured from ^fought into Hull, in England, to New York, encountered storms on the ^^^ libelled"' voyage, and was deserted by her crew, and taken ])ossession of and sold for by a part of the crew and passengers of another ship, and salvage, brought into New]iort in Pthode Island, where she was libelled and sold for salvage. The owners resided in New York, and had notice of the arrival of the vessel, and that she was libelled for salvage ; and they did not interpose to prevent a sale by the payment of the salvage. Chief Justice Abbott said, ' It appears to me that there was not a total loss until the assured alloAved the ship to be sold under the decree of the admiralty, which they might have prevented, and it was their duty to have pre vented, by paying the salvage. If it had appeared that they had used all the means in their power, and were still unable to pay the salvage, it would have been very different.' Bayley, J. ' The sale, in order to constitute a total loss, must have been (4) Thomeiy found to be necessary, and wholly without the fault of the own- v- Hebson, ers.'(3) 2B.&A.513. 396 Total Loss and Abandonment. Cliap. XVI 1. Where the ship is violently taken possession of by the crew, or the assured is otherwise dispossessed of her by superior force, and no abandonment is made until the force is v.'ithdrawn, and he has regained possession, the question of partial and total loss is determined by the degree of damage, the situation of the vessel, the means of making repairs, and the time requisite for this purpose, as in the case of sea-damage. A ship beinn- ^ V^^'^ of the crev/ of a slave ship having mutinied and taken taken posses'- possession of her, before any slaves were taken on board, allow- sion of by the ed the officers and a few of the men to go on shore on the coast crew, IS re- q|- ^fj-j^^jj a.nd ordered the boatswain to navigate the ship to covered ciDQ o J afterwards Caj'^enne, who pretended to enter into their designs, but instead sold by order of doing SO, conducted her to Barbadoes, where she was taken of the assured, possession of by a man of war. The government agent at that place, took charge of the ship, and found it necessary, without waiting for orders from the owners, to dispose of the whole of the cargo and stores. On receiving intelligence of what had Smim 7"^ *'■ happened, the assured abandoned to the underwriters, and at the Dow 349. same time wrote to the government agent to forward ' the sales. See Pole r. and a remittance of the proceeds of the ship and cargo.' In unP'^^fil'i • piJi'Suance of this letter he sold the hull of the ship. The un- 4 Bro.^'p. b.' dcrwriters maintained that this was not a total loss of the ship. 439. Supr. Lord Eldon said,' he was of opinion that the assured were en- 390. titled to abandon.'(l) A ship being While the master of a ship on the coast of Africa was on taken posses- shore, the crew took possession of the ship, and sailed with her crew°andcar- ^° South America. After plundering the cargo, they all, except ried far out of One black man, deserted her; and she was taken possession of the course of by a part of the crew of a privateer, and carried to England, the voyage, is ^yi(^|;^Qyt havins;, in the mean time, sustained any material damage, alterwards re- ^ , • i i ^ i • i i ,- • n- covered. On her arrival there, tlie owner havn^ig then the hrst mtelligencc (2^ Falknerr ^^ ^^^ interruption of the voyage, and hearing at the same time Ilitchie, 2 M. of her arrival in England, abandoned to the insurers. This was &: S. 200. held not to be a total loss.('2) If the voyage If a captured ship be recaptured by a friend, the recapture has been bro- takes away the right of abandonment as far as it depended on caVire'The^^ restraint and detention merely ; and the right will then, as in assured'may '•'^c case of sca-damage, depend upon the degree of injury sus- abandon not- taincd in conscquencc of the capture. (3) ■withstanding ^ privatecr having been captured and recaptured, was carried recap ure. -^^^^^ ijoston ; where no person appearing to pay salvage, she was (3) Queen I', condemned and sold, and a moiety of the proceeds ixiid to the Union Ins. Co. ^ , . ' , • i • F ^ i Vr i • i Wharton's rccaptors, and tlie surplus reuuuneu jn court, ijord Jiardwicke Dig. 335. h. said, ' It is uncertain whether the assured will receive any thing t. .\o. 1G9. or not ; if any thing is recovered, he must be allowed his ex- penses. Therefore I take it, when he is willing to relinquish (4) Pringle r. j,j^ interest in the salvage, he ought to recover the whole money Uartle,3 Atk. • i v^\ ti ' ft J jg^ ' insured.'(4) A ship insured from Newfoundland to her port of discharge in Toi-tugal, Spain, uv iMigland, was caj)tured by the Frencii, and after being in their possession eight days, recaptured and brought into IVJilfurd Jlavyn, but the master, mate, and all the Sect. 3. Of the Ship. 397 sailors, except an apprentice and landsman, had been taken out by ihe captors and sent to France. Before being captured, the ship had been so injured in a storm as to be unable to keep up with the convoy, and could not have proceeded on her voyage with- out going into port to relit. A part of the cargo had been thrown overboard in the storm. An abandonment was made as soon as the assured had news that the vessel was brought into Mil- ford Haven. In giving the o])inion of the court, Lord Mans- field said, ' The loss and disability was in the nature of total, when it happened. During eight days the assured was certainly entitled to be paid by the insurer as for a total loss. The sub- sequent recapture is at least a saving only of a small part ; half the value must be paid for salvage. The disability to pursue the voyage still continued. The master and mariners still were prisoners. The charterparty was dissolved. The freight, ex- cept in proportion to the goods saved, was lost. There might be circumstances under which a capture would be but a small temporary hindrance to the voyage ; perhaps none at all : as if a ship were taken, and in a day or two escaped entire and pursued her voyage. There are circumstances, under which it would be deemed an average loss, as if a ship taken is immediately ransomed. But here the loss was total at the time it happened. It continued total as to the destruction of the voyage. A re- covery of any thing could be had only by pa^Mng more than half the value. In such case there is no reason to say that the as- sured might not disentangle himself from an unprofitable trouble and further expense, and leave the insurer to save what he ^Vitherr ^' COuld.'(l)^ _ _ _ Burr. 683? Lord Ellenborough, speaking of the preceding case, said, ' I must say that there is a looseness and gencralitj' in the expres- /^-^p ,, sions which makes one pause upon it. What has a loss of the ifitchie 2^M.' voyage to do with the loss of the ship ?'(2) By loss of die & S. 293. voyage Lord Ellenborough here means that of the cargo, or the interruption of the adventure, but without the continuance of any actual restraint upon the ship. A ship and cargo insured from Virginia to London, were captured by a French privateer, in May 1760, and the captain and all the crew were taken out, except the mate and one man. The vessel was recaptured and carried into Plymouth, one month after the capture. Neither the ship nor cargo had received any damage by the capture. The assured abandoned on hear- ing of the loss. Lord Mansfield, in giving the opinion of the court, on the qucstion,whether this was a partial or total loss, said, ' Every question of this kind must depend on the particular cir- cumstances. It docs not necessarily follow that because there is a recapture, therefore the loss ceases to be total. If the voyage is absolutely lost, or not worth pursuing ; if the salvage is very high ; under these, and many other like circumstances, the assured may abandon. But in the present case the voyage was so far from being lost, that it had only met with a short temporary obstruction ; the ship and cargo were both entirely safe ; the expense incurred did not ampunt to near half the value. 398 Total Loss and Jibandonmmt. Chap. XVII. The only argument to show that the loss had not ceased to be total, was built upon a mistaken supposition, that the recaptor had a right to demand a sale, and to put a stop to any other prosecution of the voyage. But that is not so. The property returned to the assured, pledged to the recaptors for one eighth of the value, as salvage. Upon paying this, the owner was entitled to resti- tution : the recaptor had no right to sell the ship. If they differed about the value, the court of admiralty would have or- dered a commission of appraisement. It is most clear that the ship had sustained no other loss, by reason of the capture, than a short temporary obstruction. Whatever undoes the damnifica- tion in whole or in part, must operate on the indemnity in the same degree. It is a contradiction in terms to bring an action for indemnity, when, upon the whole event, no damage has been sustained. It is impossible that a man should desire to aban- don in a case circumstanced, like the present, but for one of two reasons, viz. either because he has overvalued, or because the V Mendes ^^ market has fallen. The only reasons which can make it the Burr. 1 198. interest of the party to desire-i are conclusive against allowing it.'(l ) Lord Mansfield afterwards said, ' I took great pains in deliver- ing the opinion of the court in Goss v. Whithers, and Hamilton V. Mendes. I think, that from those cases the whole law be- tween insurers and assured, as to the consequences of capture (2)Doug.232. !if^d recapture, may be collected.'(2) In a case that occurred in 1779, an English ship and freight being insured from Montscrrat to London, the ship was captu- red by tAvo American privateers, that took out the crew and a part of the cargo, and the rigging; she was afterwards recap- tured and carried into New York, which was at the time occu- pied by the British forces. A part of what cargo had been left on board, was found to be damaged; the vessel was leaky, and could not be repaired without being entirely unloaded ; and the only means of paying the salvage, was by the sale of a ]iart of the cargo that remained. The expenses of repairing would have exceeded the freight by more than 100/. and no sailors were to be had. Under these circumstances the master sold the cargo and left the vessel at New York. The assured aban- doned, and it was held he had a right so 1o do. The opinion of the court upon this case was given by Lord Mansfield. He said, 'The present (|ucstion is singly this, whether the consc- cjuences of the capture were such, as, notwithstanding the re- capture, occasioned a total destruction to the voyage, or only a partial stoppngc ? No cases say, that the bare existence of the hulk of the ship prevents the loss being total. The point is, what did the owner suffer by the cajiture ? and it appears that he suf- fered so much, that it was not worth while to pursue the voyage. 'J'lie \vhole voyage was lost.'(«) (a) Millos V. Fletcher, Dong'. 231. T.ord Mansfield cites Sponccr 7'. I'ririfo, hcfc re Lord ilardwicke in 17135, on the same question, 2 liurr. I'JIJ. Sect. 3. Of the Ship. 399 Chief Justice Dallas says, that the principle upon which this 0) ^^^^ ^'• case was decided has been confirmed by all the subsequent J^^^o^j' ■^"' cases.(l) But of this there seems to be some question. There 155^ ' are few cases in which the right of abandoimicnt is extended to a similar state of facts ; and the reasoning of Lord Mansfield, and the general doctrines laid down by him in this case, are evidently drawn from the principles relating to abandonment for a loss of the voyage under a wagering policy ; and he cites de- cisions made upon such policies, in support of his opinion. At the trial of the above case of IViilles v. Fletcher, Lord if the captain Mansfield told the jury, ' That if they were satisfied the captain acts for the had done what v.-as for the benefit of all concerned, they must benefit ot all find for a total loss. Whatever w\as right for him to have done, ^j^^ insurers if it had been his own ship and cargo, the underwriter must are liable for answer for the consequences of it.'(2) In a subsequent case, of ^he conse- a claim for a total loss of the freight, the vessel having been ^"^""'' stranded, and in that condition sold by the captain who con- ^"^ ""S- sidcred her situation to be desperate ; it was argued on behalf of the insurers that the captain did not act for the benefit of all concerned, in selling the ship, since the underwriters on freight could not be benefited. Chief Justice Dallas said, ' A distinc- tion in this case has been attempted to be drawn between the meaning of the words, /or the benefit of all concerned^ and the words, 7cilh a view to the benejit of all concerned ; but this seems to be a distinction without a difference. The expression, acting for the bcneft of all concerned, means with a view to that benefit, and not what the consequence of the act may prove. It has been said, what has been done could not be for the benefit of the insurer on freight, which must be lost by this proceeding. But the master is to look to the chief general interest, that is, the ship and cargo ; and it would be strange to say that he must suffer those to prove a total loss to the assured or the insurer, be- (3) Idle r. cause, by abandonment or sale, the insurer upon freight may °^' ^' ^^' 1 '1 1 1- ^ • 1 ' ) • i/oN Co. 3 Moore, have a loss, as depending upon ireight, cast upon nim. (3) 133, A vessel insured from Kingston, in Jamaica, to Alexandria in Virginia, was captured by Spaniards, and all her men taken out except two, and three days after recaptured by a British sloop of war, and ■ carried back to Kingston, where she was libelled for salvage, the rate of which, in such case, is limited by the British statute to one eighth of the value. The vessel's register had been lost by the capture. She was sold to pay this salvage. It was objected on behalf of the underwriters, that the assured ought to have raised funds to pay the salvage in- stead of permitting the vessel to be sold. On the question, whether this was a partial or total loss. Chief Justice Marshall said, ' It is true, that a case of capture and recapture Avill not of itself sanction an abandonment. Yet, it is equally true that, in case of capture, a recapture will not deprive the party of his right to abandon. The consequences of the capture and re- capture, the effect produced upon the fate 'of the voyage, must govern the right of the parties. The effect is always a matter of evidence, and must rest much in the discretion of a jury.' 400 Total Loss and Abandonment. Chap. XVII. (1) Mar. Ins. Co. of Alex. V. Tucker, 3 Crauch, 357. See Parage v. Dale, 3 Johns. Cas. 156. AVhether the ship may be abandoned after arriving at the port where the risk ends. (2) Parage v. Dale, 3 Johns. Cas. 158. (3) Ralston r. Un. Ins. Co. 4 Bin. 386. (4) Peters r. Phoen.Ins.Co. 3 Serg. & Rawle, 25. The right to abandon de- pends upon the facts at the time of abandoning, not upon subsequent events. (5) Peele v. MtTch. Ins. Co. C. C. U. S. Mass. Oct. 1JJ22. 2 Ma- (G) Fontaine f. l'ha;n. Ins. Co. 1 1 Johns. 205. Hee also Wood V. Lin. <^ Ken. Ins. l)o, (t Mass. Iltp. 4i;J. Washington, J, ' Whether the assured had a right to abandon, was a question dependent upon the fact, whether the voyage was broken up and not worth pursuing.' Gushing, .J. ' Strong cir- cumstances are stated, that show the voyage could not be safely pursued, or could not be pursued at all, in consequence of the loss of the register, and loss of hands by the capture.'(l) It is said by Mr. Justice Radclifl', of New York, speaking of a policy upon the ship, ' I know of no case in which the assured can abandon after the voyage is completed, and he is informed that it is so.'(2) But there appears to be no reason Avhy the ship may not be abandoned at the port of destination, if she ari'ives there in a disabled state, not capable of being repaired, or not worth repairing. The above remark of the judge must be con- sidered in reference to the particular case under consideration, which is one of capture and compromise with the captors, in which the insurers offered to pay the expenses of the compromise. In a case that occurred in Pennsylvania, a total loss was claimed under a policy on a ship that had arrived at the port to which she was insured, and no objection was made on this account merely.(3) In a subsequent case that occurred in the same state, the in- surers were held to be liable for a total loss of a ship that had arrived at her port of destination, on account of damage ex- ceeding half of the value. Mr. Justice Yeates said, ' If the vessel received her death wound during the voyage insured, it was of no moment Avhen the loss was ascertained, although subse- quently to her arrival at the port of destination.'(4) The right to abandon on account of the stranding of the ves- sel or other sea-damage, does not necessarily depend uj)on the facts as they are finally ascertained. Where a stranded ship was subsequently got off and repaired, Mr. Justice Story said, ' We are not to judge of this case by subsequent events, except so far as they operate by way of evidence upon the preexisting state of the ship. The right of the abandonment depended altogether upon the facts as they were, and the conclusions which reasonable men ought then to have drawn from them in the ex- ercise of sound discretion. The right of abandonment cannot be in suspense, or be devested by subsequent events. The whole reasoning of courts of law, in cases where it has been de- cided that abandonment must be made in reasonable time after knowledge of the loss, demonstrates that the assured is to act, not upon certainties, ])ut uj)on probabilities, and that if he should xs'ait till an unfavourable result, he will not then be entitled to tui'n the loss into a technical total loss. '(5) In respect to an abandonment of a ship which had been stranded at Martinicjue, and Avas sold by the master, without any attempt being made by him to get her off, Chief Justice Thomp- son told tlic jury, that ' the case at the time ap))eared desperate, and the good fortune of the ])urt:hasers,' in getting the vessel afloat, ' could not destroy the right of the assured ; and that if the transaction was honest, and a sound discretion was cxerci.sed in selling the vessel, the insurers were liable for a total loss.'(G) Seel. 3. Of the Ship. 401 So in case of a ship which, to prevent her from sinking, was purposely run upon the rocks in the St. Lawrence, where she was exposed to the full force of the current, and the bodies of ice drifting down the river, and was sold by the captain as she lay, after surveys, and with the consent of one of the owners, who was the agent of the others ; though she was afterwards got off, and performed the homeward voyage with another cargo, yet it was held to be a total loss of the freight ; for the captain acted bona Jidc, and for the benefit of all concerned, according ^^J Ex\s» to the circumstances as they appeared at the lime upon the best Co. 3 Moore, examination that could be made.(l) Ha- lt is a general rule that if the ship or goods insured, be dama- if the damage ged to more than half of the value, by any peril insured against, exceed half the assured may abandon, and recover for a total loss. (a) But *Jj^ ^^^"fll^^ the assured must abandon lor this cause before mal^mg the re- abandoned. pairs. He cannot proceed to repair, and abandon after the re- pairs are made, at however great an expense. A ship, upon a voyage from Messina to Boston, sustained sea-damage, which made it necessary to put into Lisbon, where the master had her repaired at an expense exceeding half of her value, as the as- sured alleged ; and the vessel was bottomried for the expense. The assured abandoned in Boston immediately on hearing of the accident, which intelligence they received about three or four days before the vessel arrived at Boston. On the arrival (-) ^^l^^^"^' of the vessel she was sold under a process instituted upon the |,^g^ Co. C.C. bottomry bond, and the proceeds of the ship and freight were u. S. Mass. not sufficient to satisfy the bond. A bill had also been drawn ^^^-^V^^,^^; on London by the master on account of the expense of repairs, ^.'^Qigy^c' " which was not paid. Mr. Justice Story held that this was a Mar. Ins. Co. partial loss. He said that the assured by electing to repair lost 15 Mass. Rep. his right to abandon.(2) ^^l. Contra. Chief Justice Parsons considered damage to the ship, exceed- ing half her value, to be a constructive shipwreck. He says, ' When the ship becomes a wreck by any of the perils insured against ; it is generally a total loss. The ship becomes a wreck /gx Wood v. when, in consequence of the injury she has received, she is Lin. & Ken. rendered absolutely unable to pursue the voyage without repairs I"s. Co. 6 exceeding the half of her value.*(3) ^^^''- ^^' '^^^' In applying this rule, the question occurs, whether the real Whether thu value of the ship, for which she might be sold, is intended, or ^j^^ value m the value in the policy, and which would be recovered in a total the policy. loss? This question does not appear to have been particularly considered by the English courts, where this rule seems not to (4) Cazalet v. have been verj^ frequently applied to cases of loss upon the ship, ^i- ^^^^^^ ^ In giving an opinion upon this question, Mr. Justice Story says, ' In what respect does the case of the ship differ from the case of the goods, as to the ascertainment of the damage ? Can (a) Le Guid. c. 7. s. 1 ; 2 Valin, 99. h. t. a. 46. n. ; Goss v. With- ers, 2 Burr. 683; Hamilton v. Mendes, 2 Burr. 1298; Clarlvson r. Phoen. Ins. Co. 9 Johns. 1 ; Waddel v. Col. Ins. Co. 10 Johns. 61 ; Queen v. Un. Ins. Co. Wharton's Dig. 335. h. t. No. 169. 51 T. R. 181 402 Total Loss and Abandonment. Chap. XVII. the valuation in the policy be a more correct guide in the one case than in the other? The question in each case is necessa- rily the same ; what is the present value of the property com- pared with its value before the injury ? and, for the same purpose ; to fix the extent of the damage sustained by the accident. One should suppose that this was the true measure of the damage in all cases in which it is attainable. The valuation in the policy cannot, in the case of the ship any more than of the goods, (l)Peelei\ measure the proportion of the damage, because the value may Merch. Ins. in the mean time have essentially changed. And yet it is that ^°-Jp- C- U. proportion which is the object of the inquiry. The law deems 1822 ^^^Ma-^' ^^^ ^^^^P ^^'0^'^h repair, unless injured more than half her value, son, **. At what time ? Surely at the time of the injury.'(l) The value of the ship in the policy has been sometimes as- (2) Fontaine sumed, but without any particular consideration of this point, r. Thosn. Ins. It secms to have been taken for granted, in most cases, that if oo-i c 1 ^' the expense of repairs would exceed half of the value before 29j. bee also i • .' i *^ ^ r ■ • i ^ i • i Dupuyr. the mjury happened, or alter it was repaired, the assured might Unit. Ins. Co. abandon. (2) ^p^^^-^^n ^^^' ^" regard to the application of the rule to a loss upon goods, ter 'i!. CoL^^' '^^ would make no difference whether the value were taken at Ins. Co. 2 one place or another, unless it applied to different kinds of goods, Caines, 85 ; the relative value of which should be different at different places, "c' ■ ^ 'r !' ^^ ^^^ insurance is upon one kind of goods only, the same loss 753; Cool-"' or damage will amount to half of their value, whether they are idge V. Glouc. put at a high or low estimate ; since the amount of the damage ^-^M ^'^^'rF"" varies with that of the value of the goods. Where the value of 134. ^ ' ^^' different kinds of goods insured in one policy, varies at the same rate at different places, the result will be the same as to partial or total loss, in reference to whatever place the value is assumed. In very many instances, therefore, this question can- not arise in respect to goods. And since the rule docs not ap- pear to have been actually applied to a loss upon goods, accord- ing to any estimate which would lead to a result different from what would follow taking the value in the policy, the applica- tion of the rule to a policy upon goods seems to afford very little ground for any inference in regard to its application to a loss wpon the ship. If this rule has relation to the value, at the time of the acci- dent, it is one exception, and 1 believe the only one, to the prin- ciple, that the rights and liabilities of the parties, as far as they depend upon the value of the subject, shall be determined by the value agreed upon imjilicdly in an open policy, and expressly in a valued policy. It is said that ihc shiji may be abandoned when, in consequence of damage by the perils insured against, she is not worth repairing ; and a ship is considered not to be worth repairing, of which the repairs would cost more than half of her value when repaired. If this value be estimated at a high rale, she is worth j'e])airing, when she is not so, if esti- mated at low rale. It would often be for the interest of the in- surers that the vessel should be repaired at an exj)ense exceed- ing half of her value, at a higher estimation by fifty per cent Sect. 3. Of the Ship. 403 than that made in the policy ; since, in her damaged state, she may not sell, at the place where she happens to be, for one quarter of the sum at which she. is valued in the policy. But the rule ought to be so applied as to give the right of abandon- ment only in cases where the vessel is not worth repairing, in re- spect to one part}^ any more than in respect to the other. As her being worth repairing or not, depends upon the value at which she is estimated, it seems to be just to assume the basis of the calculation upon which the parties have agreed in their con- tract. This as between them is the real value, since it is the sum to be paid for the ship in case of her being totally lost. The reason is the stronger in favour of this construction of the rule, since the only motive for making an abandonment, instead of repairing, where the preference depends wholly upon the ex- pense of the repairs, is, that the vessel is overvalued ; and a right of the assured, which is supported only by this reason, is very doubtful. In case of repairs made by the assured, he can recover from Whether two the underwriters only two thirds of the expense; one third be- thirds of the inff deducted on account of the new materials. In estimating expense of re- the expense of repairs, to determine whether the loss is partial ceedhalfof or total, it has been made a question, whether the one third is to the value, to be deducted, or whether two thirds of the expense of the re- g'^e the right pairs must exceed one half of the value, in order to entitle the ^^g^^^^" assured to abandon. It was the opinion of the supreme court in New York, that ' the rule has no reference to the distinction of nezv for old. It is the actual expenditure or damage, that is (l) Uupuyr. taken into view, and on the abandonment, the insurer has the „^' ' ""• '-^• 1 ^ ,, , ' . ,.^ , ' 3 Johns. Gas. benetit ot the repan's. (1) ]Q2. A majority of the court of errors were of a different opinion. Chancellor Lansing, giving the opinion of that court, said, ' as the deduction is professedly made on the principle, that the value of the subject has been enhanced to that amount, that deduction ought to be made before the test of total loss or not is applied ; for the doctrine of technical total loss is expressly founded on .^ . the position, that the subject assured has been deteriorated more b^h "caine»' , than one half.'(2) Cas. 153. Mr. Justice Story, in giving his opinion upon this question, said, ' If the deduction of one third could be made, I should have no doubt that the like deduction must be taken from the whole value of the ship after the repairs, in order to bring her down to the standard of value existing at the time of the sirand- Merch^Ing".* ing.X3) Co.Supr. According to this mode of computation, if the expense of re- pairs is 2000 dollars, and the value of the ship when repaired 4000 dollars, it is not a total loss ; for after deducting one third of the expense of the repairs from each of these sums, the re- mainder of the expense of repairs is less than one half of the remainder of the value. If the two positions, that deterioration to more than half the value is a total loss, and that the value is to be considered as between the parlies to be enhanced to the amount of one third of the expense of the repairs, be correctly 404 Total Loss and Abandonment. Chap. XVII. assumed by the court in the above case, — and of this there seems to be no question, — it atibrds very strong reasons in favour of this mode of computation. By this rule, to entitle the assured to abandon, the whole expense of repairs, without the deduc- tion of new for old, must exceed three fifths of the whole value of the ship when repaired ; and two thirds of the expense of repairs must exceed one half of the value of the ship before the injury. (1) See Du- The reasons alleged against the deduction of one third before puyr. Unit, applying the rule are,(l) that ' the rule has no reference to the Ins. Co. 3 distinction of new for old ;' — that ' on abandonment the insurers l82°^'Peele r. ^^^^^ have the benefit of the repairs ;' — that '■ no case in England March. Ins. has ever recognised any such deductions ; yet some of the cases Co. cited seemed to call for some expression in its favour, if it existed ;' — "-^^^' that ' it must operate with great inequality, and introduce into the rule an element, sometimes of injustice, and generally in- consistent with its professed design ;' — that ' the object of the , rule is to ascertain whether the ship be worth repair, and it de- cides that if the injury exceeds half the value she is not worth repair;' and that the value is not in fact enhanced by the repairs. These are the leading reasons against deducting the third. But it is said, in answer, that the insurer has nothing to do with , the third, any more than he has with any other expense incur- red by the assured, until the right of abandonment accrues ; and when the rule refers to an expense exceeding half of the value, it necessarily has reference to an expense to which the insurer is a party. The object is to distinguish a partial from a total loss ; and when this is done by the amount of expense, what can be meant but the expense for which the insurer is lia- ble in partial loss ? If the third is not to be deducted, the rule would be, that if a partial loss, in case of repair of sea-damage, would exceed two fifths of the value of the property, the assu- red may abandon. Assuming that the third is deducted for the enhanced value, after the repairs are made, it follows that the ship is not dama- ged to half the value, unless two thirds of the expense of re- j)airs amount to half of the value, for these two thirds only go to repair the damage, the other third being, by universal usage, regarded as an enhancement of the value. Whatever may be the fact, since it is assumed as a rule generally applicable in par- tial losses, that the value is enhanced by one third part of the expense of repairing, this seems to afford a very strong reason against adopting a rule in total losses which is directly inconsist- ent with this. In regard to the reason that the insurers have the advantage of the enhancement of value by the repairs made after aban- donment for sufficient cause, it does not seem to be strictly ap- [jlicable, since whatever additional value they might give the ship by repairs and improvements, this certainly cannot be of any weight in determining win thcr she had been damaged to nu^re than half of her previous value. Sect. 3. Of the Ship, 405 It is a reason for deducting the third that an abandonment of the ship, whether under an open or valued policy, operates in the greater number of instances as a sale of it at a high price. The argument drawn from the inequality in the operation of the one or other construction, seems, for this reason, to be quite as strong in favour of making the deduction. The estimation of the expense, to determine whether it ex- ceeds half of the value, includes, not merely the expense of re- pairs, but also that of getting the ship afloat, and all other ex- pense attending the disaster, for which the insurer would be lia- ble. Mr. Justice Story even says, the repairs of rigging, &c. injured by wear and tear, and of decayed timbers, arc to be in- MerclThil cluded.(l) But this must evidently depend on the insurer's Ha- Co. Su'pr. bility to pay these charges in a partial loss, for upon any other principle the assured might abandon for injury exceeding half the value, for no part of which the insurer is liable. A decision in New York is cited upon this subject. At the time of sailing on a voyage from New York to Curra^oa, the vessel's ' bottom was a litde worm-eaten, but she was a staunch, tight, and strong vessel.' She was compelled to put into Kings- ton, in a damaged state, where, in the opinion of the master and other masters of vessels, it would have cost more than her value to repair her ; and she was accordingly sold, and the assured upon her abandoned to the underwriters. A question was made, whether the repairs rendered necessary on account of the ves- sel's being worm-eaten, should be included in the estimate of the expense of repairs, by which the loss should be determined to be partial or total. The jury were told, ' that if, in calculating the repairs, they believed any were necessary, on account of injuries received from worms prior to the vessel's sailing, the expense of such re- pairs should not be included in the estimate.' And Mr. Justice Livingston gave the opinion of the court, that this direction to the jury was wrong. He cited Millar,(2) for the doctrine, that (2) p. 136. n. the underwriter ' is responsible for pre-existent defect, unless it goes so far as to make the ship not seaworthy.'(a) Mr. Justice Livingston proceeds, ' It may seem hard to hold an insurer liable for the defective nature of the thing insured ; but so long as the subject is seaworth}'', is it not a part of his contract, that in case of accident he will defray all the expense of placing her in statu quo. If she be injured, the repairs being rendered neces- sary by a peril insured against, they ought to be made, without any other examination as to her antecedent state, except to de- termine the fact of her being seaworthy. 1 adopt as a general rule, that if the old injuries are not such as to render the vessel W l^epeyster ' . , , ■,-,•'.. , 1 , . r V. L-ol. Ins. innavigable, no deduction is to be made on that account irom ^^ Caines, the cost of repair.X3) 85. (rt) See also Manning v. Newnham, Millar, 303. cited by General Hamilton, for the assured, which, however, Mr. Justice Livingston says, ' proves nothing either way.' 406 Total Loss and Ahandonment. Chap. XVII. This case cannot mean, that if a ship strike a rock and break some of her planks and timbers, the insurers are liable to pay, not only for the repairs of such damage, but also for repairing or replacing other parts of the ship, which may have been worn out, or have decayed, either before or subsequently to the com- mencement of the risk. Millar, in the passage cited, is attempt- ing to make a distinction as to the liability of the underwriter for ' the natural and expected deterioration of the subject, and its pre-existent, though latent, defect.' The passage is obscure, and it is not easy to extract from it any definite practical doc- trine. It certainly does not serve to elucidate the above case. The doctrine intended in this case must be, that if worm- eaten timbers are broken or injured by the perils insured against, still the insurers shall pay for the repairs, although it would have been necessary to have made the repairs very soon, had no damage happened in consequence of these perils. In many instances the qualities of the subject, and the use to which it is put, or the ordinary accidents incident to it in the situation in which it is placed, may concur with the perils insured against in producing damage ; still, if the damage can be satisfactorily attributed to the' operation of those perils, the insurers are lia- ble, unless they are discharged by some fault or stipulation of the assured. Whether the It is intimated in some few instances, that the undcrv.riters offer of the may, by their own acts, in refusing or oflcring to advance funds, '"^"ihe ex- ^^ meet expenses, determine the loss to be partial or total. Lord penseofre- Mansfield mentioned, among the reasons for considering a loss pairs, takes to be partial, that ' the insurer undertook to pay all charges ^■'''hA^f^^\ ^"^ expenses the assured sliould he put to by the capture. '(1) donment. ' '^'^^^^ wherc the assured was disposed to make an abandonment, (1)2 Burr. ^ut the underwriters dissuaded him, and the vessel being re- 1209. paired, performed the voyage, but was sold to satisfy the bot- tomry bond given on account of the repairs, the underwriters refusing to take up the bond, the court considered their refusal as of importance in determining the amount of the loss, and were of opinion that they should pay the whole sum at which /ON r> r- ♦ tl'G vessel had been insured, since in consequence of the bond's (2) Da Costa i ■ i i i ' i ,■ i f. Newnham, not- bcn)g taken up, ttie vessel never came to the use ol the as- 2T. R. 407.' sured.(2') Chief Justice Parsons, in giving the opinion of the court on the question of partial or total loss, in case of stranding, said, (3) Wood?'. ' If ijie underwriter will engage to pay all the expenses, [of an In°'(^ r " attempt to recover and repair the ship,] whatever may be the Mass." Hep. cveiit, the owner cannot abandon, until he has used reasonable 484. endeavours to recover his ship, and has eventually failed. '(3) Mr. .Justice Washington adopted lliis doctrine. He was of opinion that, ' If the vessel was injured more than one half her value, the assured had a right to claim for a total loss, unless the underwriter ollered to pay the amount of repairs at all events. (A) Hart r. JJ^J( )^p j^usl entrat^e to pay what may be necessary to fit the DrI. Ins. Co. , , .41 1,1 1 •, 1 I , I Condy's V(^ssel to prosecute the voyage, although it may exceed what he Marsh. 662. 11. would othei'wisc be lialile for.X'l) Sect. 3. Of the Ship. 407 The court in Pennsylvania was of a similar opinion. They said, ' If the insurer will undertake to repair the damage, though exceeding one half the value, he may do it, and the assured shall not abandon ; because, if the ship is repaired, it is all he has a right to demand.'(l) •• Mr. Justice Story is of a different opinion. He says, ' If in a doubtful case, when the expense of repairs must be great, though not with certainty one half, or where, by stranding, and the delay consequent thereon, the voyage may be, but not, in all probability, must be, lost; if the underwriters offer to bear all the expenses of the experiment, there seems to be some rea- son for admitting such an offer as a material ingredient in con- sidering whether the owner has a right to abandon. This com- ports with the doctrine, as I apprehend it, in the English author- ities. But the offer itself has never been relied on to defeat an indisputably vested right of abandonment. I know of no judg- ment where it has been held, that in a case of capture, or em- bargo, or blockade, the right to abandon can be intercepted by an offer to indemnify and pay all the expenses ; if it could be, then an abandonment in all such cases would be perfectly nu- gatory, for the policy always imports, on the part of the under- writer, an agreement to this effect. And yet if the principle be correct, I do not perceive why it is not as applicable to a case of capture as of sea-damage ; to a case of blockade, as of ship- wreck. It appears to me to be introducing a new element of discord into the law of insurance, to allow the right of abandon- ment to be a shifting right, dependent on the will of both of the parties, and to be defeated by the act of one, after it has right- fully attached by the act of the other. And I am yet to learn how it is that an offer, made at the time of the abandonment, to pay all expenses, can have more efficacy than the same offer in- corporated as it is in the original terms of the policy. The as- sured may in all cases elect to repair the damage at the expense of the underwriter.'(2) Mr. Justice Smith, of Connecticut, commenting upon this doctrine, says, ' It contradicts the whole current of authorities to permit any subsequent transactions to remove the legal effect of abandonment rightly made at the time, except the agreement of the parties. Nor can I admit that the refusal of the insurer to advance money, or undertake to defray the expense, will in any case turn a partial loss into a total loss.'(3) In considering the subject of total loss, whether of the ship, freight, or cargo, a question has occurred as to the authority of the master to sell the ship or cargo. This question may arise respecting a ship or cargo not insured ; and it occasionally has so arisen. If we assume the position of Lord Mansfield, that ' Whatever was right for the captain to have done, if it had been his own ship and cargo, the underwriter must answer for the consequences of it,'(4) we shall consider the acts of the cap- tain, as far as the underwriters are concerned, to be of the same force, and to induce the same rights and liabilities between the parties to the policy, as if the sale of the property had been (1) Ritchie v. U. S. Ins. Co. 5 Serg. & Rawle, 509. See also King t'.Middletowa Ins. Co. 1 Connect. Rep. 231. (2) Peele v. Merch. Ins. Co. C. C. U S. Mass. Oct. 1822, 2 Ma- son, **. (3) King V. Middlet. Ins- Co. 1 Conn. Rep. 237. As respects the insurers, the acts of the master in selling the property, are the acts of the assured. (4) Milles V. Fletcher, Doug. 231. 408 Total Loss and Jlbandonment. Chap. XVI 1. The conse- quences of acts of the master done withhi the authority con- ferred by the occasion, are considered to be direct con- sequences of the peril pro- ducins: the Thf! assured citnnnt ahan- pened. The freight was, therefore, lost to the assured. The next inquiry is, by what means it was lost, and wdiether the goods might not have been sent on to Bi-emen by another vessel. If this might have l)een done, and the omission to do it arose from the voluntary act of the captain, it appeai-sto be reasonable and consistent with the principles of the contract that the insurers »x;o?.7ns^(Jo^ should be discharged ;' and they were considered not to be lia- 9 Johns. \i. ' l'h''(3) Had the master ])rocurcd another vessel, and carried on the cargo to the port of destination, there would have been a loss Sect. 5. Of Freight. 427 on freight, to the amount of the freight paid to the vessel em- ployed for this purpose, or to the amount of the pro rata freight for the ])art of the voyage not performed. (1) There seems, Rep. 345^"' therefore, to have been a partial loss of freight in this case, un- less it be assumed, that the owner of the goods could have de- clined, or did implicitly decline, to have his goods carried on in another vessel, or that they were so circumstanced that they could not have been reshipped within a reasonable time for this purpose. The court appear to have considered these facts as making a part of the case. If the freight be lost by the master's not carrying on the car- -phe freight is go to the port of destination, or oftering so to do, when the ship lost by neglect is sufficient for this purpose, though a short delay for repairs may to repair the be necessary, it is not a loss within the policy.(2) The freight ^Jot^olff^rhf ^^^ of a cargo of flour being insured from New York to Barcelona, carry on the the ship was stranded on Long-Island soon after sailing, in con- cargo. sequence of which the cargo was so much damaged, that it was (2) Herbert «. not in a fit state to be reshipped for the voyage, and would not', Hallett, 3 if carried on, have been worth the freight at Barcelona. It °"^^'^^^' * Avas sold, however, at New York, for about double the amount of freight. The damage done to the ship was repaired in a few days. This was 'held not to be a total loss. Chief Justice Kent said, 'The assured had a right, on refitting the ship in due season, to insist on taking the cargo, or to be paid their full freight. Whether it would have been wise or foolish in the shipper, to have sent on the flour, in the condition it was in, was a question not 'to be put by the assured. It was none of their concern. The risk of the value of the cargo, at the port of de- livery, lay with the owners of the cargo.' Accordingly, the whole freight would have been earned and due from the ship- (3) Griswold pers personally, if the cargo had been transported in compliance |^'^^^ 'co°^i with the charterpartj^, although it should have been of no value joims. 205 ; 3 at the port of destination. (3) Johns. 321. It has already appeared that a loss of freight, occasioned by A loss of the the loss of the cargo, in consequence of the perils insured against, cargo may oc- is within the risks covered by the policy upon freight.(4) Ac- [os^s'of frefght. cordingly, if the whole cargo be lost in consequence of the perils ,^. g^ ^ ^g^ insured against, and thereby the earning of freight is wholly prevented, this will constitute a total loss of the freight, although the ship may perform the voyage without sustaining any injurj^ But if, in such case, another cargo can be procured for the voyage, or a part of it, the freight earned by the transportation of the substituted cargo, is considered to be in the nature of sal- vage, under the policy. A ship having sailed upon the voyage on which the freight if the freight was insured, was compelled to put back; and the captain sup- of a cargo posing it to be necessary, and for the benefit of the owners, sold ,^'^^'f'l'.^*l '^ both ship and cargo. Gibbs, C. J. ' If the ship had brought total 'losl* home another cargo, that would have been a salvage on the though ano- original freight, for though when the cargo was taken on board, ther freight is the insurance was on that specific cargo; yet if the ship having '^^"^"'^ * been driven back to her original port of lading, had taken 428 Total Loss and Abandonment. Chap. XVII. another full cargo on board at a lower freight, the assured would have been entitled to have recovered the difterence.'(l) If the ship- If^ ^^^is case the policy is said to attach to the freight of a par- ping of a par- ticular cargo, when it is taken on board, that is, the freight cannot ticular cargo jjg lost within the policy in consequence of the loss of the cargo, IS prevente , ^ jj j^^ carffo is exposed to the risks insured against. Accord- ana another is .,. Viii 1 1 IT r ■ 11 procured, it is mgly it was held that, when the loading oi an intended cargo not a total was prevented by a temporary detention of the ship, and another ^°^^* cargo was subsequently procured, and the freight of this cargo (1) Green r.^ earned, it was not a total loss ; the freight earned was not con- Cof 1 Marsii.' sidercd to be salvage. Rep. 447 ; S. Freight was insured from a port in the Baltic to Great Bri- C. 6 Taunt. \q\x\^ and the vessel was detained in Russia so long, by an em- bargo, that the opportunity of earning the freight of a cargo in- tended to have been shipped, was lost, and no other cargo could be procured before the frost set in, by which the vessel was de- tained until the following spring, when other freight was obtain- ed. In the mean time an abandonment was made. Lord Ellen- borough said, giving the opinion of the court, ' A mere retarda- tion of the adventure is not a substantive cause of loss, where the thing insured has not received damage ; and whether the (2) Everth r. freight earned be the particular freight contracted for, or a pos- q'^otI' ^ ^^* ^ terior freight, makes no difference.'(2) A t*t 1 loss of ^ ^<^^^^ loss of freight, as of goods, is not necessarily a loss of freight, is a the whole subject insured, but of all that is at risk at the lime. loss of what A vessel was chartered for a voyage from Bourdeaux to New is at risk at York, and thence to the river La Plata, and thence to Ham- "^ ' burg, for the sum of 18,000 dollars, one half of which was to be paid on arrival in the river La Plata, and the remainder on arrival at Hamburg. The freight was insured in New York. (3") Living- The vessel arrived at Buenos Ayres, where one half of the '^°"^-Coi. charter-money was paid, according to the agreement. She was Johns.°49. there detained by an embargo, and during the detention, the See also Ro- freight was abandoned in New York. The interest in the whole bertson v. freight was considered as having accrued, and it was held to be ' As the half of the freight earned was paid, it made no differ- ence whether it was considered to be a total loss of the whole, or only half of the freight agreed upon by the charterparty, since, if it was considered to be a loss of the Avhole, the assured was charged with one half, as so much salvage received by him. But if the freight due at Buenos Ayres had not been paid there, it might have been of importance whether it was considered to be a total loss of the whole iVf;ight, or only of the part then pending; since Avhat had become due might not eventually have been paid by the freighters. It evidently was a total loss of only the part of the freight that was pending, that is, of one half of the whole freight. It was like a total loss of goods, where half of the cargo insured has been safely landed, and delivered to the consignee. Ft has been held that an abandonment of the ship, does not take away the right of abandoning the freight, in case of a con- Sect. 5. Of Freii>'ht. 429 structive total loss by capture or detention, or sea-damage.(l) (l) Coolidge ■ - . . . . , , . . D.Gloucester Mar. Ins. Co. It is plain, that if the ship were not abandoned, in these cases, "• Gloucester and being released or repaired, performed the voyage, and if the assured had a right to abandon the freight, and should avail himself of the right, the insurers would be entitled to the freight eventually earned, as salvage. The question then occurs, whether the assured can, by abandoning the ship, aftect the rights of the insurers on freight ; that is, whether he can, by this means, make what is a constructive, equivalent to an actual total loss of the ship, in its effect under the policy upon freight. Chief Justice Kent, giving the opinion of the court, upon an ^ abandonment of freight during a detention, by capture, of a vessel which was also abandoned to the underwriters upon it, during the capture, but was subsequently acquitted, and earned freight, said, that the loss of the freight pro rata, earned subse- quently to the capture, must fall upon the underwriters upon that interest. ' There are in this case conflicting rights, and some one must yield. The owner of ship and freight is authorized to insure each of them distinctly, and the law must have intended that each of the policies should have a full and effectual opera- tion, according to the established principles of insurance. It would be to maintain a paradox, to contend, that by an aban- donment of the ship, in such a case, the remedy upon the policy upon the freight was forever gone. One contract cannot be destroyed by the operation of another contract, m/er alios. The insurer on freight must therefore submit to a total loss, in every such case, with the exception of the ratable freight, which does not go with the abandonment. The abandonment of the ship is an act in which he has no direct concern ; and his contract with the assured contains no control of that act. The loss of any chance of recovery of the freight is a consequence incidental, , . „ merely, to the abandonment of the ship, and arises from meet- HalletTs"* ing the paramount claims of the insurer on the ship.'(2) Caines,' 16. It does not appear upon what ground the circumstance, that this consequence is incidental, is of importance ; nor can it be said, consistently with this doctrine, that the insurance upon freight is not affected by that upon the ship, for it is quite evi- dent that the doctrine makes the insurers on the freight liable to pay a greater amount of loss on the whole, taking the salvage into consideration, than they would be liable to pay in case the ship had not been insured and abandoned. The only principle upon which the doctrine can be supported, seems to be that which is virtually assumed in the above case, namely, that the insurers upon freight made their contract with the knowledge that the ship might be insured, and, in case of a constructive total loss, abandoned, whereby she would in fact be absolutely and totally lost to the assured on freight. The absolute total loss of the ship, under these circumstances, is therefore a direct legal consequence of a capture, or other con- structive total loss, of which the insurer on freight may be pre- sumed to have had notice, and in reference to which he may be supposed to have made his contract. The assured, by the 430 Total Loss and Abandonment. Chap. XVII. exercise of a legal right, of which the insurer on freight had notice, makes the constructive total loss of the ship an abso- lutely total loss. By a direct consequence of the peril, there- fore, the chance of earning the pro raid freight subsequently to the accident, is gone. This is certainly a doctrine of very great importance. The English cases, in general, support it directly, inasmuch as they assume that freight may be abandoned in case of a constructive total loss of the ship : though in some instances the judges inti- mate that the liability of the insurers upon freight cannot be affected by the act of the assured in abandoning the ship. This position is evidently inconsistent with the doctrine in question. But as the general implication of the English decisions is, that the rights of the assured, under a policy upon one interest, are not impaired b}"" insuring another, and as the judges, in many in- (1~) Davidson Stances, speak of this question as being one between the differ- V. Case, 8 ent sets of underwriters, and not between either set and the Price, 539. assured,(l) and as no doctrine has been anywhere proposed which pay be substituted for this, in settling the cases to which this is applicable, the weight of authority is decidedly in favour of the doctrine in question. From the decisions above cited, it appears that this doctrine is distinctly recognised, and fully established in New York and Massachusetts. The cases applicable to this point will be sub- sequently cited more particularly, in considering the general effect of abandonment upon the different insurable interests. Section 6. Of Profits and Commissions. In respect to a policy upon profits, as it docs not appear that any thing can be transferred by an abandonment of this in- (2) Supr.387. tercst,(2) it seems to be questionable, how far the principles of constructive total loss are applicable to an insurance upon this interest. A policy being made upon the ' imaginary profit' of goods shipped at Bourdeaux for Hamburg ; the ship was totally lost in the course of the voyage, but the cargo, except a barrel of indigo, was saved, and carried to Hamburg in another ship, at the expense of the underwriters. 13ut this was held to be a total loss. Lord Mansfield said, ' The meaning of the policy seems to be that the ship and cargo shall arrive at the destined (3) Henrick- port, and is on the profit of that ])articular shi)) and cargo : but Bon r. Mar!,'et- \\^q market varies and may depend on twenty-four hours sooner lns'ior*2 «i'l^tcr; so that unless the very ship and cargo arrive, the Last, 549 u. ])r()fit may fail, and the insurance is lost.X3) In tliis case the goods were insured on board of a Bremen vessel, which took the case out of the statute against wagering policies. Mr. Marshall considers it a wager, and the principles of the decision ai-e plainly those which are ap))licable only to wagering |)olices ; though it does not appear that Lord Mans- field spoke of the policy as being a wager. Sect. 6. Of Profits and Commissions. ^ 431 A subsequent case puts a construction upon this kind of policy a part of the as unfavourable to the assured, as that of Lord Mansfield is to goods arrive. the underwriter. In the case of a policy upon the profits of a cargo of slaves ; the vessel was wrecked at the Bahamas, but a part of the slaves were saved, and carried on to their intended market. The assured claimed a total loss, to which he was en- titled, according to the above rule laid down by Lord Mansfield. But Lord EUcnborough said, it did not appear that ' if the slaves had all got to a market any profit would have been pro- duced ;' Mr. Justice Lawrence, ' This case is defective in not showing there would have been some profit;' and Mr. Justice Le Blanc, ' Can we say there has been a total loss, when a ..v „ , great part of the cargo, the profits of which Avere insured, got J;_ Gioyef^""^ safe to market ?'(1) 6 East, 316. The arrival of a part of the cargo at the port of destination, seems to be a sufficient reason for not considering this to be a total loss ; but the circumstance that a part was prevented, by the perils insured against, from arriving, was a reason for con- (q) V. Supr. sidering it a partial loss.(2) 'lis. The profits of a cargo were insured from New York to Havre. Three eighths The ship and cargo were captured and carried into England, of the goods w^here five eighths of the cargo were restored, but the voyage ^""jf^e^s' was relinquished. Under a policy on the cargo the assured had broken up at recovered a loss of three eighths. Under the policy on profits, an interme- it was the opinion of the court that ' the assured were entitled diate port. to a partial loss only. Profits are necessarily incidental, and subject to the final disposition of the goods. The assured have received five eighths of the goods. Whether they yielded a .^ profit is not material, since the assured chose to accept them at ^. g^^w 2 London, and take the benefit of the market there. They are, Johns. Cas. therefore entitled, at most, to a loss of three eighths only ."(3) 36. Another case came before the same court respecting a policy Whether the on profits, on a voyage from Batavia to New York. The ves- rule of a loss 1 ' •/ o r» 1 01 mors tn3.n sel was compelled to put into St. Kitt's, on account of sea-damage, ^^if applies to where she could not be repaired to be made fit to bring the profits. cargo on to New York, and both ship and cargo were sold there at auction, but it seems that both were bought in on account of the owners. The cargo was brought to New York in another vessel, the original vessel not being suitable for bringing the whole cargo. Upon the question, whether this was a total loss on the profits, Mr. Justice Kent said, ' Considering this an interest policy, I think it follows that there may be a partial loss. What shall be the criterion of an average or total loss in respect to profits, I cannot at present with clearness de- cide. Perhaps the established rule in respect to ship and cargo, of a loss of more than half the value, may be applicable. If so, the question here will be, whether the more profitable half of the cargo might not have befen brought in the same ship to New g^^o^^3°" ^' York. I suggest this as a rule, which may perhaps apply, but Johns'. Cas. without giving any opinion upon it.'(4) 39. . The judge probably alludes to what had been said by Lord Mansfield,(5) as to the cargo being brought in the same ship. (5) Supr. 430. 432 Total Loss and Abandonment. Chap. XVII. Whether au abandonment of the goods affects the lia- bility of the insurers upon profits. (1) Mumford V. Hallett, 1 Johns. 433. But as it seems that the goods arrived at the port of destination, where the assured had the opportunity of making profits, it does not appear that any part of the specific interest insured had been lost. The thing had happened, which the insurers under- took should not be prevented by the perils insured against. In respect to the distinction as to the arrival of the more or less profitable part of the cargo, this seems not to be a criterion of total loss. Suppose the less profitable part to have arrived, can the assured make the profit on such part, and also recover for the loss of it against the underwriters ? A policy upon pro- fits has no relation to the state of the markets, any more than a policy upon goods. In case of the capture of a cargo, of which the profits were insured, the goods and the profits were abandoned to the re- spective underwriters upon each. Both the parties and the court appear to take for granted that a constructive total loss of the goods, constitutes a total loss of profits. The underwri- ters on profits objected, that the abandonment of the goods de- prived the assured of the right of abandoning the profits, since, as the profits were a part of the goods, the assured had thus disposed of the whole subject of the policy upon profits. Mr. Justice Livingston, giving the opinion of the court, said, ' This is a dilemma which the underwriter should have foreseen at the time of his subscription. He must have supposed the cargo, in case of disaster, would naturally be abandoned to those who had insured it ; nor is it reasonable in him to expect, that for the purpose of recovering on a small policy on profits, a mer- chant should, by not abandoning the cargo, forego his insurance on that subject. A double abandonment, as in this case, does not deprive the assured of his remedy on a profit policy.'(l) The abandonment, in this case, transferred nothing to the in- surers ; it was of no effect, except as a notice of a claim of total loss. The court consider the loss of profits to have been, not constructively, but actually total. They say that the profits were insured, subject to the right of the assured to abandon the goods in case of a constructive total loss. The principle assumed is, that the abandonment of the goods, whereby the loss of profits is made absolutely total, is one of the direct consequences of the arrest and detention, for which the underwriters on profits are liable. The court say, the insurer must be presumed to have anticipated the abandonment of the goods in this case, by which is evidently meant, that it is one of the consequences of the risks insured against, for which he is liable. According to this doctrine, the principle of constructive total loss indirccll}^ af- fects an insurance upon profits, by the right of abandonment which it gives in relation to the policy upon the goods. As to the profits, however, the loss is considered to be absolutely total ; and it docs not appear that there can be any constructive total loss upon this interest, except by a stipulation of the parties to the policy. The (loc trine as to a loss exceeding half of the value, can be applicable to a policy upon ])rofits, only in the same way. Sect. 7. Of Different Subjects in the same Policy. 433 The loss of more than half of the goods in value, can give the assured the right of recovering for the loss of the whole of the profits, only upon the principle that such a loss gives the as- sured on profits the right of abandoning the goods ; and where he exercises this right, it is one of the direct consequences of the peril occasioning the loss, for which the insurer on profits is answerable. Upon this principle, a loss of more than half in value of the goods and an abandonment, is, between the parties to the policy on profits, as it is literally and in fact, an absolute- l}' total loss of the profits. But this doctrine has not been so generally settled and adopted by courts, as to be considered an established principle of insurance. Under a policy on commissions, although the assured cannot Total lojs of assign to his underwriters the right to earn the commissions, it commissions, being a trust reposed in him, personally, by his principal ; nor the demand for commissions earned and due, for as far as the commissions are earned, and have become absolutely due, the insurers are discharged ; since the assured has so far gained what it was guarantied he should not be prevented by the spe- cified perils from gaining; yet, where the assured has done all that he was to do under the contract, to entitle himself to com- missions, and yet the perils in the policy are in the way of his being finally entitled to receive them, there may be something to be abandoned. A policy was effected ' upon the interest of Williani I. Robin- son, being the allowance made with him as supercargo, as per agreement with the owners of the ship,' and the ship was dis- abled during the voyage, and the cargo sold at St. Kitts'. The right of the assured to recover upon the policy was considered by all the judges to turn upon the point, whether the assured, under the circumstances, had earned, and was absolutely entitled /^n j^t^^ to, his commissions. If his demand against the owners had be- York Ins. Co. come absolute, there could be no question as to any construe- ''• Robinson, tive total loss.(l) ^ •^*'^^'- ^^^• It does not appear that any thing can be transferred by an abandonment of commissions, except in the case of the assured's having done all that he agreed to do towards earning them ; but his being absolutely entitled to them,(2) depends upon a future (2) V. Supr, event, which may be intercepted by the perils insured against. ^^* In this case the rules relating to the abandonment of goods are applicable to a policy upon commissions. In other respects a policy upon commissions seems to be simi- lar to one upon profits. As the assured can assign nothing by abandonment, he recovers, whether under an abandonment or not, according to his actual loss. Section 7. Of different Subjects Insured in the same Policy. In regard to the right to abandon a part only of the property different in- insured; if only a part of it is at risk, and a total loss happens terestsin- 55 434 Total Loss and Abandonment. Chap. XVII. sured in the same policy. (1) 3 Mass. Rep. 413. (2) Coolid^e V. Gloucester Mar. Ins. Co. 15 JMass. Rep. 341. (3) Hurtin r. Phoen. Ins. Co. Condy's Marsh. 601. n. If the insu- rance is made upon mer- chandise in- discriminate- ly, a part can- not be sepa- rately aban- doned. (4^ Guerlaia V, Col. Ins. Co. 7 Johns. bin. (5) Chap. 7. s. 7, 8, & 9. (6) Disc. 1. n. 109, & no. (7) Des Assur. a. 47. If different sums are in- sured in the same policy upon different parts of the cars^o, one part may be separately abandoned. (0) L. 2. tit. 10. 8. 3. a. IbJ. upon this, it may be abandoned. This is a matter of daily prac- tice. It has been made a question, whether the assured can abandon a part only of the property at risk under the policy. Ship, cargo, and freight, being insured in the same policy, the assured abandoned the ship only; and it was contended, on the part of the underwriters, that he could not abandon this interest separately. The court, however, gave no opinion on this point. (1) A policj^ being made upon ship and freight, valued separately, both were abandoned. The insurers accepted the abandon- ment of the ship, but refused that of freight ; which implied an opinion on their part that they might be scfiarately abandoned. The court had no occasion to express an opinion upon the point. (2) In a case before Mr. Justice Washington, upon a policy on the vessel and cargo ; the cargo was abandoned separately, and the abandonment accepted by the insurers. The parties and the court appear to take it for granted that such an abandonment may be made. (3) These cases favour the doctrine, that where the amount insured, is insured indiscriminately upon different interests, one of the interests may be separately abandoned. But the point cannot be considered as settled. In most parts of the United States the question is not likely to arise, since differ- ent forms of policy are used for the ship and caj-go. In regard to a policy upon the cargo, if one sum be insured indiscriminately upon different kinds of merchandise, the as- sured cannot abandon a part only of the merchandise at risk under the policy. Insurance was made upon a part of a cargo, consisting of beef, butter, soap, candles, apples, and potatoes, on a voyage from New York to Charleston, against 'general ave- rage, and such total loss only, as might arise from the absolute destruction of the property.' The vessel was stranded, in the course of the voyage, on Barnegat Shoals, near Sandy Hook, and subsequently wrecked and totally lost. Some of the arti- cles insured were saved from the wreck, but a part of them were stolen. The assured claimed the right of recovering for the ar- ticles stolen, or otherwise destroyed, in consequence of the acci- dent. The court said, ' The idea that for each item or ai'ticle of the cai'jTo, which was totally lost, the underwriters arc liable, is not v.ell foimdcd. The insurance was upon so much of the cargo as an integral subject.'(4) it is said in Lc Guidon,(5) that in case of insurance upon dif- ferent kinds of goods in the same policy, the assured may make a sc})arate abandonment of the whole of the same kind, if the damage exceeds half of the value, or renders the article un- salcai)le. Casaregis says, the sound and damaged goods must be abandoned togethcr,(G) and he does not make the distinction as to the insurance l)cing upon different articles; According to the French ordinance, the assured 'could not abandon one part and relain (he olher;^?) and the French code provides against a ' partial ahandonnient.X''^) These pi-ovisions make it neces- sary to ai)andon all the goods, that are insured together with- out any distinction. But it is said, if different parts of a cargo Sect. 7. Of Different Subjects in the same Policy. 435 belonging to one shipper, are insured by the same underwriters in dift'erent policies, the assured may abandon uj)on one policy /i-)Toni. 2. only; for, says Valin,(l) the contracts have no connexion uiih p. loo. each other ; and upon the same principle, Emerigon,(2) and {-) p- 214, Estrangin,(3) say, that, notwithstanding the provisions of the or- [sN^pJh^h t dinance and code, if a certain sum is insured on sugar, and jvo. 132. n. another certain sum, in the same policy, on indigo, either of the articles may be abandoned separately, since this mode of in- suring is equivalent to two policies. Mr. Marshall says, ' If, in the same policy, articles be sepa- Whether rately valued, I may abandon one article and retain the rest.'(4) goods sepa- He cites Valin,(5) and Pothier,(6) for this doctrine, but nothing '^^'J^^^^^/f^^"^? is said of a valuation by those writers in the places cited. It "ateiy abau- has been decided in New York, upon the authority of this pas- doned. sage in Marshall, and that of Le Guidon, Valin, and Emerigon, (4-) p, goo. as cited above, in the absence of other authority, that a sepa- (5) a. 47. rate valuation gives the right of making a separate abandon (^) "• l^*- ment. Insurance was made, for a v'oyage from New York to Fal mouth, 'on 150 boxes of sugar, valued at 6,630 dollars; 5 ham- pers of mace, valued at 5,700 dollars; and 4 tons of logwood, valued at 250 dollars. The vessel was compelled, by stress of W'eather, to put into the port of Philadelphia, where 131 boxes of the sugar were found to be wet and damaged, and wholly unfit to be carried on to .the port of destination. The assured abandoned the sugar. A question was made whether he could abandon and recover for a total loss, on only this part of the merchandise insured and at risk. It was decided that he might (') Deider- make a separate abandonment of each article separately va- in«^co. of lued.(7) New York, 10 Mr. Marshall, and the court in New York after him, take the Johns. 234. ground that a separate valuation of parts of the merchandise, is equivalent, in respect to abandonment, to the insuring of dif- ferent sums upon distinct parts of it; since, otherwise, the au- thorities cited are not applicable. But whether a distinct valu- ation is, in this respect, equivalent to a distinct insurance, seems to admit of some doubt. There is evidently a great distinction between insuring in the same policy 1,000 dollars upon indigo, and the same sum upon sugar, and insuring 2,000 dollars upon so many chests of indigo valued at 1,000 dollars, and so many boxes of sugar valued at a like sum. In the latter case, the va- luation only fixes the prime cost; and the construction of. the policy, as to its attaching to the subject, and as to return of pre- mium for short interest, is the same ])recisely as if it had been an open policy upon indigo and sugar, the prime cost of which had been the sum at which they are respectively valued. But in the former case the construction as to the policy's attach- ing, and as to a return of premium, is the same as if the insu- rance were made by two policies. Where the ])olicy is so made that the sum insured may be applied to either suliject to any extent, the circumstance of a separate valuation of sonie articles seems not at all to distinguish the contract from an open 436 Total Loss and ^/Abandonment. Chap. XVII. policy upon articles, the cost of which should be equal to the amount at which they are valued ; and under such a policy, a part of the merchandise cannot be separately abandoned. Section 8. The Exisi'um Facts Constitute the Loss. ( I) Dorr r. New Erii^. M. Ins. Co. 4 Ma!s. I'.cp. 224. 230. In Kneland abandonment can 1)«; mafic only arcord- in;{ to the facts < The assured is authorized to abandon only m case of a total loss. But where the pi-operty is at a distance, the question oc- curs, whether he is authorized to abandon upon intelligence of facts constituting a total loss, whatever change may have subsequently taken place, or whether the existing facts must constitute a total loss in order to make the abandonment valid. Where property captured had been released before the aban- donment, but was not known to the assured to be so, it was urged by the counsel for the assured, since Mr. Justice Jackson, that 'The right of the assured to abandon must depend upon, the state of facts at the period of the last intelligence. The abandonment is made in reference to that period. If it refers to the actual state of facts at the time of the offer, whence arises the necessity of speedy election, after the receipt of the intelligence. If the obligation of the insurer depends upon the state of the case, as it actually exists in a distant country, al- though unknown to either party, then the obligations and the rights of the assured, must depend upon the same facts; and it is then of no importance whether he abandons sooner or later after receipt of the intelligence, since his right depends on the facts at the moment of his offer, not on those existing at any former period.' ' There is certainly a reciprocity in these rights and obliga- tions. It is absurd to say that the assured is bound to make his election to-da^^, and that he is concluded by his offer to abandon ; and yoX that the underwriter may Avait perhaps six months, (as would be the case in an India voyage,) to decide by future intelligence whether he is bound to accept.' It was urged that the same principles ought to govern in aban- donment, as in effecting insurance. ' An insurance, made after the sailing of the ship, is predicated upon the state of facts last known to the parties, and whether she was actually lost at the time of making the contract, or afterwards arrives in good safe- ty, the parties are efjually bound.' Chief Justice Parsons stated, in the same case, that according to the custom then existing in Boston, [1808] the assured had a right to abandon according to the facts of which he had intelli- gence, and that the Circuit Couit of the United States had act- ed upon that custom in one instance. (1) But the decisions on this ))oint give the assured the right to abandon, only according to the facts at the time of abandon- mcni. 'J'his (|uestion was considered in a case which occurred in lOngland in 1800. 7'he assured, hearing of the capture of his vessel, abandoned her ; but she had in fact been recaptured c ( c 9C9^ Cv.y/S Sect. 8. The Existing Facts Constitute the Loss. 437 ti before that time, and was then in safety, subject only to the (i) Bain- claim for salvage. Lord EUenborough said, that, to give eflect ^^'^p^' to the abandonment under these circumstances, would ' grievous- £^^^ 329 . j ly enlarge the responsibility of the underwriters; it would be Camp. 237. to make them answerable, not for the actual loss, but for a sup- (2) Larsons v. posed total loss, which had in fact ceased to exist.' And all the ^j'a°unt^363 . judges were of opinion that an abandonment could be made, p^aikuer r. only according to the facts at the time of makins; it. They Ritchie, 2 M. thought it inexpedient to extend the right of abandonment, and ^3? V th they supposed that the limiting the right to the state of facts Avas Robertson 2 more conformable to the principle of indemnity.(l) Dow, 482. This opinion has been confirmed by other decisions. (2) But (4) Marshall Lord Eldon seems to have entertained doubts on this subject, co. 4Cran'ch respecting which he reserved his judgment, by ' protesting against 202. See also being considered as eriving an opinion agreeing or not agreeing Alexander v. with these decisions.'(3) f^!*' '"^ *^°' This subject has been particularly considered by the supreme 370. ' court of the United States. A vessel having been captured, (5) Mumford was restored on the 9th of July. The assured having heard of *'• Church, the capture, but not of the restoration, abandoned to the under- 147°. "siocum" writers on the 19th of the same month. In giving the opinion v. United of the court. Chief Justice Marshall said, ' It appears to us to I"s. Co. 1 consist with the nature of the contract, which is a contract of igj".^"]^^^** indemnity, that the real state of the loss, at the time the aban- r.Un'it. Ins. donment is made, is the proper and safe criterion of the rights of Co. 2 Johns. the parties. Might they depend absolutely on the state of in- ^'^l* ^^^ • formation, a seizure, which scarcely interrupted the voyage, Hastie^s'^*" might be, and frequently would be, converted into a total loss ; Johns. Cas. and the contests respecting the real state of the information 293. might be endless.'(4) BediSrf '"' In New York it was decided, in a number of cases, that aban- Caines'Cas. donment might be made according to the facts of which the as- 21 ; Hallett sured had knowledge ;(5) but this opinion was overruled in the ^- ^^y*°"' ^ court of errors, where it was held that an abandonment must qq. be authorized l)y the facts existing at the time of making it ;(6) (7) Penny r. and the courts of that state have adhered to this rule in subse- ^/ York (ns. quent' cases.(7) 'The rights of the parties, says Chief Justice Co^ 3 Games, Kent, will be determined by the state of things existing at the (8)Schieffelin time of th-e abandonment. '(8) And the same rule is adopted in "• N. York Pennsylvania.(9) ]7h^^°'4 The concurrence, in opinion, of so many courts, affords a very /r)\ ^dams r. strong presumption in favour of this doctrine, notwithstanding Del. Ins. Co. the apparent doubts of Lord Eldon, and the opposite opinions 3 Binn. 287. formerly given in Massachusetts and New York. It is said, in opposition to this doctrine, that an anterior risk Ot'jections to may be insured against, and if the assured makes a fair disclo- j^^^^ the^ri°ht' sure, and violates no stipulation, he will be entitled to recover of^abandon- for a loss which had in fact happened before the policy was ment tothc made. The representation is made, and the policy is subscribed, ^^^^^^"'S facts. with reference to an anterior state of facts, and if the parties knew what had subsequently happened, they Avould not enter into the contract; since, if the property was safe, the owner would 438 Total Loss and Jlbandonment. Chap. XVII. not pay the premium, and if a loss had occurred, the insurer would not undertake to make indemnity. And it is said, that, to make the rule as to abandonment analogous to this practice, the assured ought to have the right to abandon, according to the state of facts at the date of his last intelligence. But one of these rules is not necessarily involved in the other. Though parties may make a contract in reference to a pi-evious state of facts, and a risk that has already been incurred, it does not follow that the assured ought to be entitled to indemnity, accord- ing to a previous state of a loss. There is no inconsistency in adopting one rule and not the other ; since the two cases differ. In making insurance against a previous risk, the ignorance of the parties as to what may have taken place, is a condition of the validity of the contract. As to the obligation of the contract, past events, unknown to the parties, are the same as future events. They are able to contract, not merely because they do know what was the anterior state of the property and risk, but also because they do not know what has been the effect of the perils in the mean time. The ignorance of the parties of intermediate facts, is not a reason why a contract, relating to a past risk, should be made ; it only takes away a reason why it should not be made, or rather why it could not be made. If the parties do not know the result of a past risk, they can contract respect- ing it ; and then the question occurs, whether there is any legal objection to permitting such a contract. There is no reason why parties should not be permitted to make a contract of indemnity relating to a past risk, provided it is fairly made. The grounds for allowing of such contracts, are precisely the same that they are for permitting insurance in respect to a future risk. If, therefore, there is any rea- son why abandonment on account of the former state of the property and degree of loss, as distinguished from the present, should not be allowed, it shows that the cases of contracting re- specting past risks, and abandoning according to a former state of a loss, are not analogous in principle, although they resemble each other in relating to past events of which the parties are not informed. ^ The reasons for and against abandonment accoiding to (he existing facts, are drawn, for the most part, from the princi- ple of indemnity. Where the property still remains, the da- mage which the assured has sustained by the perils insured against, can, in very many instances, be better ascertained from the existing, or from subsequent facts, than from any former con- dition of the property. Where it apjiears, hy the intelligence, that the ])r()j)orly, or a greater part of il, is irrecoverably lost and gone, this (|ucstion does not arise; since, in such a case, the former state of facts shows what the present must be. If these facts constitute an absolute or constructive total loss, the assured is, no doubt, entitled to recover immediately for such a loss. It is only in r( lation to cases where the peril had not ceased to art, at the date of the last intelligence, and where the property bdll .sub.-.istcd, that this question can arise. Sect. 8. Tlie Existinis Facts Constitute the Loss. 439 i? It is. therefore, plain, that the rule of abandoning according to the existing facts, will, in general, more completely adapt the indemnity to the actual loss. But it may be asked, Avhy should not the assured, in cases of capture and detention, wait for the condemnation of the property, or for the continuance of the re- straint a certain time, bcfoi-e he has a right to recover for a total loss ? And it would be difficult to give any reason why he should not. A provision to this effect is inserted in very many policies, and a rule which it is found to be expedient for the parties generally to agree upon, it is equally expedient to adopt as one of the principles of interjireting the contract, if it can be adopted. 13ut a rule of this sort cannot well be framed and adopted by a court, without the interposition of an ordinance; such a general regulation must be of a positive nature, and is more projierly a legislative, than a judicial act. But it is still better to leave it to the parties, since ordinances concerning the making or interpreting of contracts, ought not to be resorted to excepting in cases where some unquestionable and pressing evil is to be remedied. It is said, in favour of abandonment according to the facts known, that insurance ought to afford the assured a speedy return of his capital. But, on the other hand, insurance is a contract of indemnity, and not of sale of the property in- sured. And one of these principles ought not to be lost sight of in following the other. A detention by superior force is no greater interruption of ihe adventure, than a detention for the same length of time, by adverse winds, or to repair sea-damage ; and as far as it can be conveniently done, in either case, courts will prevent the assured from converting a contract of indemnity into one of sale. On this ground there are very strong reasons for imposing a restraint upon the right of abandonment, by limiting it to the ex- isting facts. The rule is put upon this ground by the courts, and though it operates unequally, according to the length of the voyage, yet it seems to be the only definite, convenient rule which is of easy application, that can be adopted upon the sub- ject. This rule affects the right of recovering for a total loss, in proportion to the distance of the property from the place where the abandonment is made. This distance is generally limited by the length of the voyage insured. AVhere any great delay of the assured's right of recovering for the loss, is occasioned by this rule, it is in voyages which were originally expected to occupy a very considerable time, and in adventures, therefore, in which a delay of a few months, more or less, is not very fikely to derange the operations of the assured. Another reason for not very speedily enforcing the claim for a total loss against the underwriters, is, that, in case of insurance upon tfie freight or cargo especially, if the detention has ceased before the abandonment, the freight may have been earned and received, or the goods have arrived at the intended market, and been sold, and the proceeds come to the use of the assured, be- 440 Total Loss and Abandonment. Chap. XVII. fore the abandonment is made; and the underwriter ought not to be compelled to pay the assured the value of the subject, and give him credit for the salvage, A rule is of doubtful expedi- ency, in such case, which is founded upon the principle of sud- denly winding up such wide and extensive concerns. The rule, that the assured shall abandon immediately, is not at all inconsistent with the rule that the right depends upon the existing facts, since there is the same reason why he should be determined by the extent of the loss, and not by the state of the markets, whether the right of abandoning refers to the exist- ing, or to a former state of facts. He will no doubt be in- fluenced by the state of the markets, and the rate at which the property is valued, but the rule is intended to confine him, as far as it can be done, to the reasons arising from the extent of the loss ; and where he has obtained the information on which he abandons, he ought to make an abandonment immediately, to whatever state of facts it relates. Section 9. Upon what Intelligence Abandonment may be made. As the assured must, at the time of abandoning, state the grounds upon which he makes the abandonment, it is necessary in order to make the act valid, not only that the existing facts should constitute a total loss, but also that the assured should be informed of the accident which occasions the loss. He cannot abandon merely upon the apprehension that a total loss may have taken place, and afterwards establish his right so to do, by facts that subsequently come to his knowledge, and which were wholly unknown to him at the time of making the abandonment. This raises a question as to the kind of information which will authorize an abandonment. An abandon- Although an abandonment may be made upon intelligence of ment made ^ ^ofj^j \q^^_^ and may be considered to be properly made, since tEenceis"' the intelligence justified it, yet if the intelligence prove to be not valid. false, the abandonment will be a nullity. It is not enough that the abandonment is justified by the intelligence ; it must be au- thorized by the facts of which the assured has intelligence. Lord Kllcnborough says, ' The eflcct of an ofi'er to abandon, is, that if the offer appear to have been properly made upon sup- posed facts, which turn out to be true, the assured has put him- self in a condition to insist upon his abandonment. But it is not enough that it was properly made, upon supposed fiicts, if it turn out that no such facts existed. It may be said to be pro- perly made upon notice received, and bond fide credited, by the assured, of his ship having hccn wrcckcti, whether such intelli- gence were true or not, and though the letter conveying it turn out to be a forgery ; and yet clearly no right of action would (l)Rain- ^^^f jj^ \\\m^ founded upon an abandonment made upon false in- son "iVkast' ' tf'lli^'cnce. If the facts be all imaginary or founded in miscon- 31 1'. ' c(i)iion, the whole foundation of the abandonment fails.'(l) In Sect. ]0. Within what Time ^Abandonment, 8{c. 441 In one case the court said upon this subject, ' The infornia- Abandonment tion received by the assured, upon which the abandonment was "pomntelh- 1 '' "^ iT-r *•• jjence through made, was a mere newspaper account ; and it mformation ni any ^^g newspa- case, derived through such a channel, would be sufficiently authen- pers. tic to warrant an abandonment, we think in the present instance it was too imperfect to aflbrd sufficient data to the assured to cal- [/^'^j""" ^A culate his actual loss.'(l) i Caines'54!' The assured abandoned upon a report that the property was Abandonment captured. Lord Ellcnborough said, ' No certainty existed as to upon a re;>or< the capture at the time of the abandonment; but in cases like of the loss, this, men must act upon probable information, and leave the effect of their acts to be determined by the eventual truth or falsehood of the intelligence they receive. If I hear of my ship's being taken in the East or West Indies, I am not obliged to wait till 1 certainly know the event by the testimony of those who Avere present. Provided the thing has once existed, what 1 do, believing it to have taken place, must be valid and effectual. If an abandonment is made where there has been no capture, of course it goes for nothing, however strongly the circumstance may have been reported. Assuming the fact, then, that the as- sured had reason to believe that their ship was captured, and (2) Baiu- they were acting bond fide, I think they were authorized to aban- bridge r. Neil- don, and that, as the ship proves actually to have been captured, 037 ^^^' the abandonment stands good. '(2) Section 10. Within what time Abandonment must be made. In all cases of total loss the assured may abandon, if he avails himself of the right in due time. While the total loss still con- (3) 8 Mass. tinues he may abandon immediately on having intelligence of K-ep. 502; 10 it, unless the policy contains some stipulation to the contrary. 110*^347^^* A provision is often inserted in the policy, that, in case of (^4)"8 Johns, capture or restraint, the assured shall not abandon until the 237; 9 Johns. property shall be condemned, or until it shall be proved to have \}r}^ Johns. been under detention ninety days,(3) or six months.(4) This (5) Dorr r. provision means, not merely that the assured shall not abandon Un. Ins. Co. "within the ninety days, or other specified time, but that he shall ^ Mass. Rep. have the right to abandon only for a restraint or capture that c5C'oo-den r continues during such time ;(5) unless the property is sooner con- Coi. Ins. Co. demncd.(6) 10 Johns. 273. If the policy contains no provision in regard to the time with- 0)^llwoodr. in which abandonment is to be made, the assured must, on p^rk 280. receiving intelligence of a loss, ' make his election speedily, (8) Mitchell whether he will abandon or not ^(T) he must 'give notice to the */ ^'^'^i t T. underwriters within reasonable timc.'(8) Mr. Justice Ashhurst /-qn j^^* says, he must ' signify his election the first opportunity ;"(9) and Chief Justice Gibbs; ' he must elect in the first instance — the first instance means after the assured has had a convenient op- portunity of examining into the circumstances, to ascertain what is the degree of damage — if the assured had treated it as in- 56 4.42 lotal Loss and Abandonment. Chap. XVII. (1) Gcinonr. tending to pursue the adventure, after he knew the full extent ^'^^•^^" "^f ■ of the damaee, I should have thou2;ht that the abandonment Co. 6 Taunt. , ^ , vA 383 ; 2 Marsh, was tOO late.'( 1 ) Rep. 88. See ' The law is,' says Chief Justice Dallas, ' that the assured alsoCalbraith sl^all abandon in reasonable time, that he may not lie by to see r. Gracie, whether it may be more for his interest not to abandon.'(2) Marsh. 388. But ' What is the reasonable time within which the notice should n. 406. n. be given, must, in every case, depend on the circumstances of fl-f w\i ^^^^'^ i"<^^ividual case. '(3) ' This is a question,' says Chief Justice Harrison^TB'. Marshall, ' which has not yet been reduced to such certainty as Sz. B. 106. to enable the court to pronounce upon it, without the aid of a (3) Read r. jury.'(4) ^^°B i"^' ' -^'^^^ ^'"^'^^ ^^ ^^ ^ reasonable time, necessarily has reference to (4) Ches. Ins. some purposes, for which it is so. The assured must of com^se Co. i\ Stark, have more or less time to make known his abandonment to the eCranch, underwriters, according to the distance and means of communi- cation ; but the delay necessarily occasioned on these accounts, does not seem to be, exclusively, the reasonable time contem- plated by the rule. And yet it does not appear for what par- ticular purpose the assured may make any voluntary delay to abandon, after hearing of a loss, without los.ing the right to aban- don upon the state of facts then known to him. It is plain that he must not make any delay for the purpose of learning the state of the market, or of taking advantage of a favourable change. Chief Justice Gibbs says, that if the assured delays with the purpose of pursuing the adventure, he will lose the right to abandon. But the assured must be supjjosed in every instance to delay with the intention of pursuing the adventure; the question being, whether he will pursue it, or throw it upon the underwriters. The meaning of the Chief Justice is, that where the delay to abandon can be attributed only to an inten- tion of pursuing the voyage, the right of abandoning upon the state of facts then known, is forfeited. When the assured is informed of a state of facts which au- thorizes abandonment, he must immediately make up his mind whether to pursue the adventure or not. The only question is, Avhat time it is reasonable for him to take for this purpose ? and this ought, certainly, to be very short; and the time that can be reasonably allowed, cannot be so long as to raise any question on this account, as to the abandonment's being seasonably made. Where the delay is so short as to raise the cjucstion, whether it was sudicicnt to give a man an opportunity to form an opinion upon a given state of facts, constituting a total loss, it can hardly be supposed that the abandonment would be out of time. The aaenred "^"J ^^^"^7' ^^ng enough to make a question as to the loss of f ;tri dchiy the right to abandon, must be justified by some other reason, making aban- 'fhc assured may delay to make abandonment on two grounds; (lonrnent only ^yh(>,.p }|i^ information of the loss is imperfect, he may wait to po-tr; of asccr- obtaiu more definite and satisfactory intelligence ; and where the tjiining new p(>ril Still subsists, and is oj)erating upon the property, he may ^^^*'' wait for new circumstances, which are the direct consequences of the ptM'il. If the ship is stranded, he may wait for an cxami- Sect. 10. Within what Time jibandonrnent, S,'c. 443 nation and survey to ascertain her situation, and the probability of her being got oft'; if she is arrested, he may wait with the expectation of her being released, or for the purpose of ascer- taining whether she will be so or not. The right of abandon- ment is not lost by delay, for the purpose of ascertaining the ex- tent of the loss or damage, or the probable continuance of the peril. By any delay, except what is occasioned by the distance, or difficulty of communication, the assured will lose his right to abandon on the facts then known to him, although such facts constitute a total loss. But the continuance of an embargo ; or the condemnation oY property captured ; or the circumstance that a stranded ship is not made to Hoat by lightening her ; or the circumstance that nothing is heard of a missing ship, by waiting a still longer time, although she may before have been missing long enough to give the right of abandonment ; are all new facts which show the extent of the operation of the peril, for intelli- gence of which, the assured may wait; and when such additional facts become known to him, his right to abandon revives. In general, therefore, if a question occurs as to the loss of the right of abandonment by delay, the inquiry is, whether other conse- (l) Smith?-, quences have resulted from the peril subsequently to the first ^^^^^^IjP-^ar. intelligence of the disaster, or whether additional facts have Mass. li. 668. been ascertained, showing the extent of the loss. (2) Barkers. The assured has, in different cases, been held to lose the right p^^^^^'„^ of abandonment by a delay of forty-five,(l) thirty-eight,(2) (s^^Savaeef thirt3^,(3) or nine days ;(4) where no reason could be given for Pleasants, 5 the delay. But a delay of five months was in one case held not Binn. 403. to be a forfeiture of this right ; it appearing that during a very i^-^.^^^^|.'^^c"' considerable part of that time, business was suspended, in con- East 13.' sequence of an epidemic, in Philadelphia, where the insurance (5) Bell v. was made.(5) Beveridge, 4 The captain of a vessel which had been lost, arrived in London, where the assured resided, on the 25th of April. The papers two^days^held relating to the loss, were handed to the assured on the 3d of not to be a May, and the abandonment was made on the 5th of that month, forfeiture of Dallas, C. J. ' There is no evidence of any communication to *, "^^^ ^° , ' /•!• C11 •! 1 abandon, the owner, oi the cu'cumstances oi the loss, previously to the arrival of the captain; and the notice having been given on the day but one after the owner was furnished with the full means of knowing all the facts of the case, must be deemed sufficient.' Burrough, J. ' No case has gone so far as to say, that not a sin- gle day must elapse betAveen a knowledge of the loss and the notice of abandonment.' But Mr. Justice Richardson thought, that if the captain had any communication with the ownei-, (6)Read7'. after his arrival before the third of May, the abandonment was Bonhana, 3 not seasonable.(6) B.c^B. 147. These cases, and all others indeed, relating to this subject, show that the assured must lose no time in making an abandon- ment, and that by any considerable unnecessary delay, he will forfeit his right to abandon, on the state of facts previously known to him. 444 Total Loss and Abandonment. Chap. XVI L (1) 9 East, 283; 15 East, 13. (2) 6 Cranch, 280 ; 5 Bina. 403 ; 4 Dall. 272; Cal- braith v. Gra- cie, Condy''s Marsh. 599. n. ; Liver- more V. Newbp. M. Ins. Co. 1 Mass. Rep. 264. (3) Roget V. Thurston, 2 Johns. Cas. 248. (4) Earl v. Shaw, 1 Johns. Cas. 313. (5) Steinback V. Col. Ins. Co. 2 Caines, 132. (6) Lawrence T. Sebor, 2 Caines, 207. See also Boh- len V. Del. Ins. Co. 4 Binn. 430 ; Brown v. Phoen. Ins. Co. 4 Binn. 445; Mont- gomery I'. U. S. Ins. Co. 4 Binn. 445. 469. n. (7) Tom V. Smith, 3 Caines, 245. & Principles up- on which the (h'r:ibioiis on this subject proceed. In the incidental expressions of this doctrine in the English courts, no distinction is made of a case of capture or detention, from any other constructive total loss ;(1) and some of the Ame- rican cases imply that there is no such distinction. (2) Many of the American cases, however, and particularly those decided in New York, seem to adopt a diflerent doctrine. Mr. Justice Radcliff, giving the opinion of the court in a case of capture, says, ' If the loss continues total, the insured may at any time abandon ;'(3) and Mr. Justice Livingston, in a case of detention, where the assured did not abandon until fifteen months after the vessel was seized, said, ' It has been decided by this court,(4) that an abandonment may be made at any time after the acci- dent, provided the loss continues total at the date of the aban- donment \{b) and Chief Justice Kent said, in another case, ' The time of abandonment is not material, since the loss remained total when the abandonment was made.'(6) The judges in New York profess to deviate from the English doctrine. Mr. Justice Livingston, in giving the opinion of the court, said, ' In opposition to the positive regulations or practice of most maritime countries, and of England among others, where abandonment must be made in reasonable time after no- tice of loss, we permit the assured to lie by for years, in case of a capture or other technical total loss, provided the capture or other accident continues.'(7) But it seems to be questionable whether there is any distinc- tion in principle between the English and American cases in this respect. Whatever general expressions may have fallen from the American judges at different times, no direct opinion has, to my knowledge, been given in the United States in favour of the validity of an abandonment, where the assured delayed making it on the first news of the loss, not for the purpose of ascertaining the nature and extent of the loss, or probable con- tinuance of the peril, but on account of the state of the markets, or any other reason, with which the insurers had no concern ; and then abandoned on the same state of facts relating to the loss, for the purpose of throwing the loss, by the state of the markets, upon the insurers, or for any purpose not arising from the extent of the operation of the peril, or the nature and de- gree of the loss. The doctrine that the assured must abandon immediately, is recognised repeatedly in the American courts, and never denied in any instance, as a general doctrine ; and if there is any such doctrine, it follows that the continuance of a constructive total loss, docs not give a continued subsisting right of abandonment. The assured can abandon only while the loss is total, and to say that he may abandon at any time while the loss continues to be constructively total, is completely to shut out any doctrine as to seasonable abandonment. Notwithstanding some apparent discrepancy in the general rxprcssions usr-d l)y the judges, 1 think the decisions, both in JOnghind and the United States, may be reduced to the princi- ples before kiid down, making allowance for some diversity of Sect. 10. Within what Time Abandonment, ^c. 445 opinion in the application of those principles to a given state of facts. Where the courts have considered the loss to be abso- lutely total, the property being, in the opinion of the court, swept away and destroyed by the peril, they have held the time of abandonment to be of no importance, since no abandon- ment was necessary ; but they have not, in all instances, agreed as to the facts which amount to such a total destruction of the subject, as renders an abandonment unnecessary. Where the assured has neglected to abandon, on the first news of the loss, and has afterwards abandoned on hearing of the condemnation of the property captured, or of any other fact showing that the damage was greater, or that the detention was likely to be of longer continuance, than he had reason to pre- sume on the former intelligence, the abandonment has been held to be valid. But here again the courts have not, in all instances, agreed in their construction of the facts. In the application of this principle, as well as of all pthers, different judges may make different inferences from the same testimony. The dif- ference of opinion, as far as there has been any, has related to the principles, or to the weight of evidence, rather than to the doctrines of insurance. Where it has appeared to the court that the state of the mar- kets, or any other reasons, having no relation to the extent of the peril or damage, was the inducement for delaying to make an abandonment in the first instance, and for making it subsequent- ly, they have considered the abandonment as having no effect, and have held that the assured could recover only the amount of the actual loss or damage. Both the English and American cases may, in general, I think, be brought within these principles. In regard to a case of cap- ture or detention, no court can hold that, by neglecting to aban- don on the first news of the arrest, the assured forfeits the right of recovering for the loss. If the arrest continues, without any condemnation of the property, or any proceedings respecting it, and without any prospect of its release, a court must either hold that a valid abandonment may be made subsequently to the first news of the loss, or that the assured may recover with- out any abandonment, since the contract is otherwise defeated. The authorities are pretty strong in support of the doctrine, that the assured cannot recover for a loss in such case without mak- ing an abandonment, unless the hope of recovering the proper- (i^ Grade v. ty is wholly gone. If there is any hope of its being recovered, New York Chief Justice Kent says, ' The assured ought to renounce it ^"f^- ^°' ^ [i. e. by abandonment] in favour of the insurers, or not recover vld^Supr.' at all' for the loss.(l) Whatever doctrine may be adopted in 384. this respect, the rule permitting an abandonment is certainly more convenient, and more conformable to the principle of in- demnity. The doctrine requiring an immediate abandonment after news The assured, of a loss, seems to be more strictly enforced in England than in having ne- the United States. By many of the decisions it appears that in &}^<=*'''* ^° - 11 • 1 -11 1 abaudon on cases oi arrest, as well as m other constructive total losses, the news of a cap- 446 Total Loss and Abandomncnt. Chap. XVII. ture, may assured must make abandonment without delay, or lose his abandon on j,j i j. ^^ abandon. But where the assured nefflecled to abandon hearing ol the o. . iiiii •? iii condemnation on notice ot capture, It was held that he might make abandon- of the pro- ment on hearing of the condemnation of the property, though perty. ^^ appeal lay from the sentence of condemnation.(l) The assured It has been held in the United States also, that where the as- afti^ an arf°° surcd did iiot abandon immediately on receiving news of a cap- ture, he might abandon on receiving intelligence of the condem- nation of the propcrt}^, though an appeal might have been made from the decree of condemnation. (2) But it was held that where the only reason for delay to aban- don in case of capture, appeared to be for the purpose of taking advantage of a favourable market, if it should prove to be such, the assured lost the right of abandonment by the delay. Chief Justice Dana said, ' The assured retains his knowledge of the capture for thirty days, and makes no communication to the insu- rers of the fact ; then comes the very unexpected intelligence of a peace having been concluded, and he immediately makes his offer to abandon. Why was this neglected so long ? Proba- EarU'. Shaw, bly, because, from the contents of the letter from the captain, 1 Johns. Cas. he expected that the vessel and cargo would soon be released, and that he should make a profitable voyage. This expectation being defeated by the news of peace, he turns about and makes his claim against the insurers for a total loss. It has been said, that thfe right of the assured to abandon remains while the loss continues total : this is generally true, but the rule is subject to some restriction ;' and the court, for the reasons stated above, consider this case an exception to the rule. (3) A case has since been decided in Pennsylvania upon the same principles.(4) A decision was given in England upon a similar principle. In case of a constructive total loss, and the sale of the property, the proceeds of which were not paid over to the assured by the person who had acted as agent of the parties concerned in re- ceiving the proceeds, the assured abandoned, after the expira- tion of two or three years, for the purpose of transferring the claim against the agent, to the underwriters. It was held that the abandonment was too late, and could not have this effect.(5) The right of abandonment may be kept in suspense by an agreement of the parlies. Where the underwriters agreed, in case of capture, that the assured might take such measures as they should judge best for the interest of the parties, 'without prejudice to their rights;' the court understood this to bean agreement, on the })art of the insurers, that the right of aban- donment should be in suspense, and remain so, while the pro- perty continued to be detained, unless the agreement should be sooner determined by one of the parties ; and accordingly that the assured might abandon at any time during the continu- ance of the detention by cai)turc.(G) after an ap peal from the sentence of condemna- tion. (1) Mullett 1'. Shedden, 13 East, 304. (2) Dorr v. Un. Ins. Co. 8 Mass. Rep- 494; Dorr V. New Eng. Ins. Co. 11 Mass. Rep. 1 313; Bohlen V. Del. Ins. Co. 4 Binn. 430. (3) Liver- more V. Newbp. Mar. Ins. Co. 1 Mass. Rep. 281. (4) Savage r. Pleasants, 5 Binn. 403. (5) Mitchell r. Edie, 1 T. R.608. The right to abandon may be kept in euspeuse. (C) LivJng- -iton V. Maryl. Ins. Co. G Cranch, 280. Sect. 11. Form of ^Abandonment. 447 Section 11. Form oj* ^Abandonment. No particular form of abandonment is prescribed, and the Abandonment form is said not to be materiai.(l) It is not necessary to use need not be any Ibrm of words, and it has not been considered recjuisite as ^^'^^ •" ^"X a general rule, that an abandonment should be made in writ- ^^^.^j^'^^ '^^ ing'(2) (1) Bell V. Lord Ellenborough thinks ' It would be very well to prevent Beveridge, parol abandonments cntirely.'(3) ' It is singular,' says Mr. Mar- l Bi"- 52. n. ; shall,(4) ' that an abandonment is not accompanied by any of ™^^^ '. * those solemnities which such an act would seem to require.' Sydham'r. Although it would certainly be more convenient that abandon- Mar. Ins. Co. mcnt should be made in writing, since, in all transfers of pro- 1/°^^ ^V^'^^ ' perty, the purchaser wants some evidence of the purchase, yet 599. j an abandonment, by a mere oral declaration, is held to be valid Yeates, 406. and effectual. (5) The written contract of the parties may ren- der it necessary to abandon in writing. But policies of the |; Coates^^s usual form contain no provision in this respect. It is the prac- Yeates, 378. tice, in many places, to make abandonment in writing; it does (3)Parmeter not, however, appear by any decided case, that such a custom l'^? ^'^^"^4^' authorizes the insurers to demand that the abandonment should (4-) p. 599. be so made. In whatever manner an abandonment is made, it must be po- The abandon- sitive and absolute. The French code provides against any ^^^\ 7"^* ^^ conditional abandonment.(6) The rule is the same in England and the United States. (7) Lord Ellenborough says, ' An abandonment must be express (5) Read r. and direct. I think the word abandon should be used to render Bonham, 3 it efrectual.'(8) It was held in Pennsylvania, that a declaration ^^' ^^ by the assured, in a letter to the underwriters, that he meant to (6)l3ode'de abandon, was an abandonment; the construction put upon the Commerce, letter being that he meant thereby to abandon. (9) 1.2.Ll0.s. 3. A question has been made, whether a demand for a total loss, is an abandonment.(f/) A letter to the underwriters containing Whether a a statement of the loss, and enclosing an account of the sale of '^"^^"^^ °} ^ , 1 1 • . 1 1 I " r 1 • 1 ^oicd loss IS an the property, and claiming the balance 01 the amount msured, abandon- after giving credit for the salvage, was held to be a sufficient ment. abandonment.(6) (7) 1 Johns. But Lord Ellenborough was of opinion that the demand of a i"i- total loss did not amount to an abandonment. When the broker [J^^ ^ Camp, communicated to the insurers on freight that the voj-age had (9)'Bell?'. been broken up by capture notwithstanding a recapture, and Beveridge, 4 re(juired them to settle as for a total loss, and to give direc- ^^- ^'^f^ tions' as to the disposition of the salvage, he thought this did not amount to an abandonment. He said, ' There is no implied abandonment by a demand of a total loss. If parol aban- donments arc allowed, I must insist upon their being express- ed. An implied parol abandonment is too uncertain, and can- (a) Watson v. Ins, Co. of N. A. 1 Binn. 47 ; Calbraith v. Grade. Condy's Marsh. 599. n. {h) Idle v- Roy. Ex. Ass. Co. 3 Moore's Rep. 115. But see Tunno v. Edwards, 12 East, 488. 448 Total Loss and Abandonment. Chap. XVII. m P meter ^^^ ^^ supported. The abandonment must be express and V. Todhunter, direct ; and I think the word abandon should be used to render it iCamp. 541. efiectual.'(l) In respect of a policy ' against total loss only,' Mr. Justice Sewall said, ' If a loss had been proved in this case, total in its own nature, and in the sense of the parties to the contract, a statement of the salvage remaining, is all that would be requi- site, in my opinion, to the claim of the assured to a total loss ; (2) Murray v. t^^t is, to enable him to recover the sum insured, deducting the Mass Rep amount of salvage. In this opinion, however, my brethren do 478. ' * not concur with me.'(2) A total loss The underwriters ought to know the grounds of the abandon- can be claim- ment, that they may determine whether to accept. The provi- ed only upon g^Qj^g q( ^\^q policy usuallv make it necessary to state the grounds, macfe known since the underwriters agree to pay the loss only after proof oi to the insur- it. Accordingly the assured must, at the time of making aban- ers at the donmcnt, make known to the insurers the reasons for which he in"^abaiidon- tibandons. He cannot avail himself of any other ground than ment. that alleged by him at the time of abandoning, and if there be any other facts, either known or not known to him at that time, on which an abandonment would be necessary in order to en- title him to recover for a total loss, he must abandon anew be- fore he can recover for such a loss on account of those facts.(3) "Whether the A deed of cession of the property has been held not to be an assured must essential part of an abandonment. Where the agent of the as- make a writ- g^i-ed had abandoned, by a letter to the underwriters, and after- the property wards executed a deed in behalf of his principal, transferring to abandoned, them all the assured's interest in the goods, the validit}^ of the (3)Suydami'. abandonment was brought into question, partly on account of an ^^V' ^^^' an' "llsged informality of the deed. Chief Justice Marshall, giv- 2 Johns! 138 • ^'^^5 ^^^ opinion of the court, said, ' The informality of the deed Dorr V. N. E.' of cession is thought unimportant, because, if the abandonment M. I. C. 4 ^vas unexceptionable, the property vested immediately in the un- ^^^^'^^^l derwriters, and the deed was not essential to the rights of either i^oU * lv(ilston , . ^ . » V. u'n. Ins. P^irtj^ Had it been demanded, and refused, that might have Co. 4 Biun. altered the law of the case.'(4) f^^\\^^^' ^^''■' ^^^^^^^ Washington, however, was of opinion, that where Co. V. Stark'' ^^^^' insurers accepted the abandonment, but at the same time re- 6 Cranch, quired a deed of cession and transfer, the assured might recover 272. foi- the loss without making such a deed. (5) (r,) Ilurtin V. j^^i^ thisojiinion was given upon the ground that the abandon- (jo. CondyVs mcnt gavc the insurers all the rights and advantages of owner- Marsh. GOl.n. ship of the property; for it can hardly be doubted, that where the property should be so situated, in consequence of the peril by whi( h the loss was occasioned, that the insurers could not, without a written transfer or authoi'ity from the assured, esta- blish their claim to the salvage, that a court would consider the making such transfer, or giving such an authority, a condi- tion upon which the right to recover the amount insured should depend. It has been said, that the assured shall be charged in a total loss with as much of I he properly as might have been saved, but for lii> finill or ncM:ligciicc. V\)o\\ the same principle, Sect. 12. Acceptance of Abandonment. 449 if the assured, by not vesting the insurers with the necessary powers, or giving a recjuisitc title, prevents them from recover- ing the salvage, what they so lose ought to be deducted from the amount which he would otherwise recover. But the necessity and importance of any written transfer or authority, would evidently depend upon the nature of the inte- rest abandoned, and the particular circumstances of the case. The laws of most countries, for instance, make some forms of transfer requisite, in order to entitle a vessel to certain privileges ; and if, in case of abandonment for detention, the assured should refuse to transfer the vessel to the underwriters by a legal bill of sale, he would, by this refusal, so far deprive them of the right of salvage ; and, in such case, he certainly ought, either not to be entitled to recover for a total loss, on the ground that he had waived his abandonment; or the amount, by which the value of the vessel to the underwriters was diminished by this refusal, ought to be deducted, in fixing the amount of the loss, in the same manner as if a part, or the whole of the salvage, had been retained by the assured, and gone to his use. An abandonment made for a sufficient cause, operates as an Defect in the assignment of the interest, although it wants formality in some form of the respects, if the underwriters waive any objection on this ac- abandonment "^ . 1X13.V DC count. (1) Mr. Justice Washington was of opinion, that the un- -waived, derw^'iters, by calling for the papers to prove the loss, where a /^s Watson r. total loss was demanded, dispensed with anymore formal aban- ins. Co. ofN. donment.(2) A. lBinn.47. Where the assured claimed a total loss, in a conversation be- ,. Qpifcie'^^ tween him and the underwriter, which implied that an abandon- Condy's ' ment had been made; and a new policy was effected on the Marsh. 599. n. same risk, with an agreement that the claim of the assured, un- (3) M'Kmtire der the former policy, should not be thereby prejudiced ; this johns, 229. was held to be sufficient proof of an abandonment.(3) And (4) M'Lellan where the assured claimed a total loss, and the underwriters made '• Maine F. k payments upon his claim, they were considered as thereby dis- ^qt^^I^^ *^' pensing with any more formal abandonment. (4) Rep. 246. An acceptance of an abandonment will, no doubt, have the effect of waiving any objection to the abandonment, on account of any insufficiency in form. Section 12. Acceptance of Abandonment. Although an acceptance may supply any merely formal in- The abandon- sufficiency in the abandonment, an acceptance is not, in any other "-thoutany respect, necessary'- to its validity and effect ; being made in due acceptance, form, and for sufficient cause, it transfers the subject, and per- fects the assured's right to recover for a total loss, although it is not accepted by the insurers. Whether this right may be de- vested by posterior events will be subsequently considered. An acceptance, to be binding; upon the insurers, must be made ^^'^^^♦V^ 1 1 • 1 r 1 • Tin • -11 ance must be by persons authorized lor this purpose. Where it was provided, made by per- by the act incorporating a company, that ' no losses should be sons authori- 57 ' ''^- 450 Total Loss and ^Abandonment, Chap. XVII* (l)Beatty r. Mar, Ins. Co. 2 Johns. 109. The silence of the insurer is not an accept- ance. (2) Peele v. Mer. Ins. Co. C. C. U. S. Mass. Oct. 1822. 2 Ma- son's Rep. **. (3) Hudson r. Harrison, 3 B. & B. 97. See also Smith r. Robertson, 2 Dow, 474. paid without the approbation of at least four of the directors, with the president and his assistants, or a majority of them ;' it was held that an agreement by only the ' president and assist- ants,' without the four directors, to pay a total loss, was not such an acceptance as bound the company .(1) The insurer need not expressly accept, or decline to accept, an abandonment. As his accepting is not necessary to its vali- dity, an immediate acceptance is not of great importance to the assured. Since a general, uncertain, and loose kind of evidence, must, from the nature of the case, be admitted to be sufficient preliminary proof of a loss ; the underwriter is not always able to form a satisfactory opinion, on the proof at first produced, whether the loss is total. Accordingly he is not construed by his silence, merely, to accept the abandonment. He ' is not bound,' says Mr. Justice Story, ' to signify his acceptance. If he says nothing, and does nothing, the proper conclusion is, that he does not mean to accept.'(2) In a few instances, however, the silence of the insurer has been construed to be an acceptance of the abandonment. Chief Justice Dallas, speaking of a case in which the underwriter had not, during three months after an abandonment, expressly ac- cepted or refused to accept it, nor consented to the appointment of an agent to look after the property, said, ' If the law were to compel the assured to give the earliest notice of abandonment, and at the same time to allow the underwriters to lie by and afterwards refuse to accept it, there would be no mutuality of obligation between them. Here the notice was given in De- cember, and the insurers, after having done nothing during nearly three months, interpose,' [with notice that they did not accept the abandonment, and should not authorize a sale of the property.] 'Where there are circumstances to show an acqui- escence, it is not allowable for the underwriters, after such an ac- quiescence, to come forward and interfere. I think there was such an acquiescence here.' Park, J. ' Here is enough to satisfy the court that thcreVas an acquiescence, or silence on the part of the underwriters ; which admits that the assured was acting in the best way for all ; and this acquiescence completed the right of abandonment.' Richardson, J. ' If the underwriters intend- ed to resist the abandonment, they should have taken the step with more promptitude, instead of waiting two months.'(3) But the doctrine above laid down, by Mr. Justice Story, that if the insurer lies by, and neither does, nor says, any thing, it shall not be construed into an acceptance, or acquiescence in the abandonment, seems to be generally implied, very distinctly, in the cases on this subject. When the assured demands pay- ment of the loss, it is necessarily understood whether the under- writer accepts the abandonment, and in ordinary cases, this is as soon as a knowledge of the fact is of importance to the as- sured. An abandonment is, however, in the greater number of instances accepted or rejected within a short time. But any rule on this subject would evidently be of no eflcct, since, if the silence of the underwriter were construed into an acceptance, he would in all cases expressly decline to accept. Sect. 12. Acceptance of Jlbandonmcnt. 451 lere is no There is no established prescribed mode of accepting, any The more than of making, an abandonment. Whether the insurer particular accepts or not, is a matter of construction of his words and ^'°'''" °^ ^^' conduct. Any act done for the purpose of making the most of ^^^ ^"'^^* the property, to whomever it may prove to belong, ought not to be construed against the party who thus consults the common interest. Accordingly, where an agent of the insurers on freight, (i) Griswold ' superintended and directed the unloading of the ship, and em- '"• N. Y. Ins. ployed persons for that purpose,' this was not construed to be an gq-'/ij^u^* acceptance of the abandonmcnt.(l) 32i.' Where the assured stated to the underwriters upon sugars, the damage the sugars had sustained by the stranding of the ship, and they in answer, desired ' that the assured would do the best they could with the damaged property ;' Lord Kenyon held that this was not an abandonment and acceptance. ' It was the interest of the underwriters to make the partial loss as (2) Theiiuson light as possible, and it was the duty of the assured to do so ; r. FJetcher, l and this was the meaning and import of the letter.'(2) Esp. 73. It has been held, that the acts of the insurers may be a proof Acts of the in- of their acceptance, though they declare at the same time that surer con- ,1 1 * • . 1 4 . "^ strued to be they do not mtend to accept. an accept- ' Whenever the underwriter,' says Mr. Justice Story, 'does ance, against any act in consequence of an abandonment, which could be h«s deciara- justified only under a right derived from it, that act is, of itself, V^^'p , decisive evidence of an acceptance. If he should proceed to Merch. Ins. sell the vessel, with an express protest against the acceptance, Co. c. C. U. and a declaration that he did it for the benefit of the owner, his ^- Mass. Oct. act would conclusively bind him.'(3) son'**. The appointment of an agent to get off a stranded ship, or to -pj^^ insurers sell her, and the taking possession of the ship for the purpose take posses- of getting her oft', and subsequently keeping possession of her, sionof the though for the purpose of repairing her for the use of the as- ship to repair sured, was construed by the same judge, to be an acceptance of the abandonment.(4) (4) lb. A payment under a demand for a total loss, has been held not Payment on a. necessarily to be proof of an abandonment and acceptance, demand for a The assured hearing of the seizure of the goods insured, at a *°*^^ ^°*'* foreign port, before receiving documents to prove the loss, claim- ed from the underwriters the payment of the amount of their subscriptions, but made no formal abandonment. The under- writers paid 50 per cent of the amount subscribed, and an en- dorsement was made upon the policy, ' adjusted a return for loss (5) Tunno r. of 50 per cent on account.' This was held not to amount to an Edwards, 12 abandonment and acceptance.(5) But it is to be observed that ^^^*' ^^^• the payment was made in this case, without a particular know- ledge of the nature and extent of the loss. 452 Total Loss and Abandonment. Chap. XVU. (l)Kingr. Middletown Ins. Co. 1 Connect. Rep. 202. The ship abandoned, is afterwards sold by the assured on their own ac- count. (2) Abbott V. Sebor, 3 Johns. Cas. 45. The assured's selling the ship, is not necessarily a waiver of an abandon- ment. (3) Waldcn r. Phoen. Ins. Co. 5 Johns. •TIO. Sic also Livingston V. Hnstie, fJ Johns. Cas. 29.J; Law- rence V. Van Horn, t Caincs, 285. Section 13. Revocation of Abandonment. The parties may doubtless annul an abandonment, by their consent and agreement to this effect. ' If the assured,' says Chief Justice Reeve, ' wishes to waive his abandonment, there must be the consent of the insurer. An abandonment is irre- vocable Avithout his consent.'(]) But where the insurers allege and insist upon a revocation of the abandonment by the assured, they are not usually required to show^ that they assented at the time of the alleged revocation ; though the assured might per- haps show that they dissented, and thereby defeated his inten- tion of revoking the abandonment. Where the assured bought in the ship, in case of her being sold by the captain on account of sea-damage, and subsequently sold her on their own account, it was held to be a waiver of any claims they had acquired against the underwriter by making an abandonment. A voyage was broken up in consequence of sea-damage, and the ship sold by the captain, and '' purchased by the supercargo, who was part owner of ship and cargo. He purchased her in behalf of the owners ; and on her return to New York, the owners affirmed the purchase, and sold the ship for their own benefit. ' This,' said Mr. Justice Kent, ' was a waiver of any claim for a total loss on the ship. It is like the case of Saidler V. Church, in which it was held that if the assured, after abandon- ment, affirm the purchase of the vessel by the captain, he waives his abandonment. '(2) The principle of this decision seems to be, that the assured, from all the circumstances, appeared to treat the loss as partial, which proved to be so in fact ; and therefore he should not abandon and recover for a total loss. In a subsequent case it it was held, that the assured's selling the ship after an abandonment for sufficient cause, was not neces- sarily a revocation of the abandonment. The underwriter re- fused to accept an abandonment of the ship, made for sufficient cause, and the assured sold the ship at public auction, with the view of turning the property to the best advantage. Mr. Justice Thomj)Son, giving the opinion of the court, said, ' The assured, by operation of law, became the trustee and agent of the under- writer. To consider the mere sale of the subject, by the as- sured, for the avowed benefit of the underwriter; after a refu- sal to accept a rightful abandonment, a waiver of such abandon- ment would, it aj)pears to me, be against the principles of jus- tice and .sound commercial policy. If the subject was of a pe- rishable nature, a total loss must be the consc(jucnce. The as- sured i)eing made trustee ex jicccssitntc, if he executes his trust with fidelity, it is all the law re(juires of him. And whatever he does, ought to be considered as done in the character which the law has imposed upon him, unless his cotiduct shows clearly that he intended to act for his own benefit, and to waive his abandonment. The nuo anvno is llie criterion by which his acts ought to be tcsted.'(r>) Sect. 13. Revocation of Abandonment. 453 The assured, on receiving intelligence from the government Ordering the agent at Barbadoes, that the crew of their ship had mutinied, sale of the and brought the ship into Barbadoes, and that it had come into ^^''goj and a 1-1 1 1111 111 1 , ^ * I ■ i remittance of his hands, and he had sold the cargo and stores ; wrote to nim to ^^e proceeds, forward ' the sales, and a remittance of the proceeds of the ship held not to be and cargo.' On receipt of this letter he sold the ship. The a revocation assured had abandoned on receiving intelligence of the loss. It donment.^'^' was contended that, by their interference, in regard to the dispo- sition of the property, the assured had revoked the abandonment. But Lord Eldon was of opinion that they had not, by this act, yJ^ith'^Toow waived the rights acquired by the abandoment.(l) 349. But if the assured unnecessarily involves the property in new Unnecessarily speculations and enterprises, he is considered as receding from involving the his abandonment. This is usually called doing acts of owner- property in ship, as distinguished from the superintendance intended merely f*^^ *^!,^" ^' r ■* 1 ^ ■ ,-1 ^ r-ii • r- T • 141 1 11 tionsisa lor the preservation ot the property. Chiei Justice JVlarsnall waiver of an says, ' It", after abandonment, any particular instructions had abandonment, been given by the assured, as to contracts concerning the goods, if any act of ownership had been exerted by him ; such con- duct might be construed into a relinquishment of an abandon- (2) 6 Cranch, ment which had not been accepted. '(2) ^''2- In case pf a vessel, that was abandoned on account of deten- Despatching tion by an embargo, there being no question made by the court *he ship on as to the right to abandon, the assured gave notice to the under- yoya„-e is a writers, that unless they would accept the abandonment, and revocation of pay a total loss, he should cause the vessel to be sold for the an abandon- benefit of whom it might concern ; and receiving no answer, he ™^" * caused the vessel to be sold at auction, and purchased her him- self, at about one third part of the sum at which she was valued in the policy, and immediately chartered her for a voyage. The court said, 'The assured, when he abandons and claims a total loss, and is reduced to the necessity of a sale of the sub- ject, cannot purchase it, on his own account, without waiving the abandonment. If he persevere in the claim for a total loss, he must surrender to the insurer the benefit of the repurchase ; and this rule is founded in sound policy, to prevent fraudulent speculation upon a loss, at the expense of the insurer.'(«) ' If after abandonment,' says ?fir. Justice Story, ' the owners i^^^^e assured were to proceed to repair the ship, without consultation with the I[jfp"ft j^^ underwriters, it would be a waiver of the abandonment. '(3) waiver of his Under a policy upon commissions, the assured's proceeding claim to re- upon the voyage and earning commissions, has been held, in !^°?'j'^/'°'^* Pennsylvania, not to be a waiver of the rights acquired by an abandonment made during detention in the course of the voyage, ^j^. ®^^ ''• Insurance was made upon a supercargo's commissions,' valued Co. C.'c. U. S. Oct. 1822. (o)Ogdenr. Firem. Ins. Co. 10 Johns. 177; S. C. in Err. 12 ^Mason, **. Johns. 25. See also Saidler v. Church, 2 Caines, 244. What is said in the above case, of the assured's surrendering to the insurer the benefit of the repurchase, was probably sYiggested by the provision of the French ordinance ; but it does not appear to be applicable here. A sale by the assured to himself, is plainly a mere ceremony. 454 (1) Parker v. Towers, 2 Browne, App. 80. Total Loss and Abandonment. Chap. XVII. at 7000 dollars, free of average, and without benefit of salvage,' on a cargo from Philadelphia to Laguira. The vessel was cap tured on the 1 1th of April, and carried into Curra^oa, and there detained until the 25th of July, when a compromise was made with the captors, and about ten per cent in value, of the cargo, was left at Curra^oa as security for the fulfilment of the terms of the compromise. An abandonment had been made in Phila- delphia, on the 18th of July. The cargo was also abandoned, on account of the capture, to the respective underwriters upon it. The supercargo proceeded upon the voyage, after the re- lease of the vessel, and received, for making sale of the cargo, and investing the proceeds, commissions equal in amount to those originally stipulated for, and which had been insured, at the value of 7000 dollars, in the policy. As average and salvage were excepted by the contract, the questions arising upon these facts were, whether this was a case which authorized an aban- donment and claim for a total loss, on the 18th of July, and if it was such, whether the supercargo, by subsequently proceeding upon the voyage, and receiving commissions equal in amount to those, on account of which the insurance was made, had waived the rights, if any, acquired by the abandonment. It was held that this was not a wagering policy; and as a consequence, that these facts constituted a total loss ; and that the supercargo's pro- ceeding, and earning commissions, was not a revocation of the abandonment.(l) Section 14. Whether an Abandonment may be Defeated by subsequent Events. It has been a question, much considered, both in England and the United States, whether an abandonment seasonably made for sufficient cause, fixes the rights and liabiUties of the parties ; or whether the right of the assured to recover for a total loss, in such case, may be devested by subsequent events. In re- gard to this question. Lord Mansfield said, the action of the assured ' must be founded upon the nature of his damnification, as ii really is, at the time the action is brought. It is repugnant, upon a contract of indemnity, to recover as for a total loss, when the final event has decided that the damnification in truth is an average, or perhaps no loss at all.' And although there had lieen no abandonment, while a total loss continued in this case, yet Lord Mansfield implies what would have been his opinion of such a case ; he says, ' In case of the ship being taken, the assured may demand for a total loss, and abandon, provided the capture, or tolal loss, occasioned thereby, continue to the time of abandoning and bringing the action.' But he finally reserves his opinion on this (juestion, by saying, ' The assured can only recover an indemnity, according to the nature of his case, at the lime of the action brought, or, at most, at the time of his oflcr (o abandon. We give no opinion how it would be in case the ship or goods be restored in safet^^, between the oficr to aban- Sect. 14. Abandonment may be Defeated. 455 don and the action brought ; or between the commencement of (i) Hamilton the action and the verdict.'(l) f- Mendes, 2 In one of the Russian embargo cases, where freight was ^""- '^^^' abandoned during the detention of the vessel, and she was af- terwards liberated and earned freight, the court held that the assured could not recover for a total loss ; that is, his right to re- cover for such a loss was devested by a subsequent event. But in this case. Lord EUenborough said, the freight was lost to the assured by their abandonment of the ship, ' which abandon- ment was the act of the assured themselves, with which, and the ^^-j M'Arthy consequences thereof, the underwriters on freight have no con- „. Abel, 5 cern.'(2) Considering this to be the ground of the decision, East, 397. the case is not a direct authority to our present purpose, but the court afterwards considered this case as deciding that sub- sequent events, happening independently of the agency of the assured, may devest his right to recover for a total loss. In another case. Lord EUenborough, speaking of the argu- ments of counsel, said, ' It is there said that if the right of aban- donment once vested and be exercised in time, it cannot be de- vested by subsequent intelligence. But the case of M'Arthy V, Abel, shows the contrary ; for there, though the notice of abandonment were well made, it was devested by circumstances, which happened after the notice of abandonment had been given.'(a) The court thus very distinctly adopts the doctrine, that an abandonment may be defeated by subsequent events. Lord Eldon, speaking of the effect of subsequent recapture, in defeating an abandonment, said, cases had been stated ' with respect to what would be the law if the recapture were known between the offer to abandon and the action brought ; if known between the institution of the action, and the judgment, or be- tween the judgment and execution, or payment ; and it was cu- rious that while those who had been most concerned in settling what was the law on this subject, had taken great credit to themselves for its certainty, it might perhaps be found, when the matter came to be examined, that there was as much uncer- tainty on this subject as in any other branch of the law.' The case under consideration was an appeal from a judgment given in Scotland, that an abandonment made for a sufficient cause fixed the rights of the parties, and could not afterwards be defeated without their consent; and Lord Eldon evidently agreed with the Scotch court, for he plainly intimates that if the judgment of the House of Lords were given upon this point, it would confirm the opinion of the Scotch court, and overrule that ,^-. gj^j^j^ ^^ given by the court of King's Bench, in Bainbridge v, Neilson, Robertson, 2 cited above ; but the case was decided upon a different point.(3) Dow, 474. In another case of abandonment and subsequent recapture, Lord EUenborough said, ' Although Lord Eldon is said to have spoken with dissatisfaction of Bainbridge v. Neilson, in the (a) Bainbridge v. Neilson, 10 East, 342. Lord EUenborough had said to the jury, at the trial of this case, ' The abandonment stands good notwithstanding the recapture.' 1 Camp. 237. 456 Total Loss and Ahandonment. Chap. XVII. House of Lords, I confess, with all deference, I am unable to see any good reason for receding from that judgment. The principle of that decision is this : I have a right of action for nonpayment of money ; the party pays me before action brought; that takes aAvay my right of action.' Bayley, J. ' It appears to V. Ritchir"^ ^^ ^^^^ assured can only recover in respect of that which con- M. & S. 393. stituted a loss at the commencement of the action.'(l) But the recovery of a ship, that had been captured, was held by the same court, not to defeat an abandonment made on ac count of the capture, where the loss continued to be total, not- withstanding the recovery of the ship. A ship upon a voyage from Liverpool to Sierra Leone, was captured by a French frigate. The captors left on board only the master and four- teen of the crew, and plundered, and threw overboard, a con- siderable part of the cargo, a greater part of the ship's stores, provisions, and water, and thirteen out of sixteen of her great guns, all her small arms, and all her ammunition, her long-boat, instruments, register, and all her papers except the log-book. The French commander then put on board of her twenty-one of the crew of a Portuguese schooner which he had burnt, and fourteen British sailors, and put her under the command of the master of the Portuguese schooner, and ordered him to make for the nearest land, which was Buona Vista. A supply of provisions was obtained at Buona Vista, by bartering a part of the cargo left on board by the French. The vessel then sailed for Madeira, but the crew grew ungovernable, and were often drunk, and rose and insisted on going to the Western Islands. The ship accordingly proceeded to Fayal. There was no disci- pline on board ; but what command there was, was exercised by the British captain, who originally sailed in the ship on the voyage insured. At Fayal, the Portuguese captain laid claim to the vessel, and the remainder of the cargo, on the ground of a donation from the French commander, and instituted proceedings upon this claim, in the admiralty court at Fayal. Sentence was pro- nounced on the first of April, against his claim, and he appealed. On the 4th of the same month, the assured, having received an account of these accidents, gave notice of abandonment. The master of the vessel sold what was left of the cargo, and after paying the law expenses, left the remainder of the pro- ceeds to answer the Portuguese captain's appeal. He, by this means, regained possession of his ship on the 1 Ith of May, and sailed, on the next day, for Liverpool, where he arrived before the assured had commenced his suit. It was insisted, in favour of the underwriters, that the recovery of the ship, before the commencement of the action, defeated the abandonment. Lord l']llcnborough said, that in the cases where it had been held that a recovery of the ])ropcrty defeated the abandoimient, ' there was a restitution of the ship, in an undamaged state, and she afterwards earned her freight ; so that all j^retcnce of a total loss, at the time of bringing the action, liad ceased. The mere restitution of the hull, if the assured may eventually pay Sect. 14. Whether an Abandonment may be Defeated, S{c. A5l more for it than it is worth, is not a circumstance by which the totality of the loss is reducible to an average one. If no aban- donment had been already made, do not sufficient circumstances exist, in the present case, to warrant an original abandonment at the present moment? It appears to us that there existed, at (i) MMver v. the time of the action brought, circumstances fully sufficient to Henderson, 4 entitle the assured to recover for a total loss.'(l) ^^' ^ ^' ^^^* The English court of common pleas seems to have acquiesced in the doctrine adopted in the King's Bench. Chief Justice (2) Hudson r. Dallas says, ' In case of abandonment, after capture, the aban- Harrison, 3 donment is superseded, if the ship be recaptured, and pursues Brod. & Bing. her voyage beneficially.'(2) (??Peeie r. Accordingly, the doctrine appears to be very explicitly adopt- Merch. Ins. ed by the court of King's Bench, and acquiesced in by that Co. C. C. U. of the common pleas in England, that an abandonment, made ^- Mass. Oct. -If I'll 18''2 2 Ma- seasonably, and for a sufficient cause, is defeated, if the loss ^^^ ;* g^g ceases to be total before action brought. The opinion of the 2 Val. 143. h. Scotch court was different, and Lord Eldon concurred in that t. a. 60 ; 2 opinion. The doctrine of the King's Bench cannot, therefore, Emer. c. 17. be considered to be completely established as law in Great Code de Com. Britain. 1. 2.t. 10. s. In the United States 'an abandonment once rightfully made, '^^ ^-i^^- ^^® is conclusive, and the rights following from it are not devested ins*^Co^^' by any subsequent events, which change the situation of the stark, 6 property.'(3) Cranch, 268. During a detention of the ship by capture, the freight was abandoned, and before the action brought upon the policy on freight, the vessel had been released. A majority of the judges of the supreme court of the United States were ' of opinion that j-'*^ .^^'°*'t' the state of loss at the time of abandonment, must fix the rights q^^ ^f penn.' of the parties.'(4) 4 Cranch, 29. Mr. Justice Parker, giving the opinion of the court in Massa- chusetts, upon this question, said, ' Upon abandonment season- ably made or offered, the only question would seem to be, whether a right to abandon existed at the time ; and if it did, the rela- tion of the parties to the property is fixed by that act. If this be not true, but the rights of the parties are held to be uncer- tain and fluctuating, after an abandonment, under circumstances which constitute a total loss, there seems to be no reason why the commencement of the action should be fixed upon as the period when this uncertainty is to cease, rather than the time of rendering the verdict. But how great the inconvenience would be, that the degree of responsibility of the insurer should not be known until the end of a lawsuit, must be obvious to every one who considers the importance of having some legal owner fr\ t of the property, to prevent its waste and destruction. Some peri- Boardman, 3 od should be established at which the right of the assured to in- Mass. Rep. demnity, and of the insurer to the property, should be fixed ; ^^^' ,^f\|^^^ and we think we are warranted by sound principles to fix the j^g^ q^] 7 tiijie of abandonment as that period. '(5) Johns. 412. Where a policy provided that a loss should be paid in sixty days, after proof and adjustment thereof, and the ship, being 58 458 Total Loss and Abandonment, Chap. XVII. ( I) Munsoat". N. E. Mar. Ins. Co. 4 Mass. Rep. G8. (2) Dutilgh r. Gatliff, 4 Cranch,31. n. ; 4 Dall. 446. (3) Bordes r. Hallett, 1 Caines, 444 ; Jiimel V. JNlar. Ins. Co. 7 Johns. 412 abandoned during a detention by capture, was restored within the sixty days after the abandonment, Chief Justice Parsons said, ' The abandonment was made when the loss was total, and a right to recover for a total loss was vested in the assured ; and this right cannot be atiected by the credit given to the insurers, in the payment of the loss.'(l) Chief Justice Tilghman, in giving the opinion of the court in Pennsylvania, said, ' Some period must be fixed for determining the right of the parties. To limit it to the time of commencing the action, would be of little service to the insurers; for the law being once so established, an action would be brought in every instance on the first default of payment. The time of abandon- ment seems to be the most convenient period, because the pro- perty is transferred by the abandonment, and can never after- wards be claimed by the assured. There is no reason why the assured should be bound, and the insurer left free to take ad- vantage of the subsequent events.'(2) The same doctrine is adopted by other American courts.(3) Section 15. Effect as to Rights of Property^ Clai?ns, and Liabilities. An abandon- ment con- siderecf as an assignment, refers to the time of the loss. (4) 2 Emf;r. 223. c. 17. !. f). (r>) Davidson «'. Case, (! Price, 542. It is the efiect of a valid abandonment to transfer the pro- perty in the subject. The payment of a total loss by the in- surers, or their liability to pay such a loss, in consequence of an abandonment, gives them a title to the property, or what remains of it, as far as it was covered by the policy. An abandonment, considered as an assignment of property, must have reference to the time of the loss, for only that which is constructively lost, can be abandoned, and to know what is lost, reference must necessarily be had to the time of the loss. From that time the insurers are, to most purposes at least, en- titled to the advantages, and subject to the liabilities, of owner- ship. This is not inconsistent with the principle, that the right of abandonment depends upon the state of the existing facts ; which means, as we have seen, that the facts of which the assured is informed, and which he makes known to the underwriters as the ground of his abandonment, must constitute a total loss, and also, that the loss must not have ceased to be total in the mean lime. The abandonment must be authorized by the existing facts, but as an assignment, it has reference to the time of the loss. In France an abandonment of the ship, considered as a trans- fer of the property, has been construed to relate to the com- mencement of the risk.(4) But in the English cases, it seems to be taken for granted, that an abandonment of any subject, considered as an assignment, relates to the time of the loss.(5) It has been distinctly held in Massachusetts, that ' the aban- donment relates to tlie time of the loss, and not to the com- mencement of the risk. The undertaking, on the part of the insurer upon the ship, is, that he will pay for it, if it should be Sect. 15. Effect as to Rights of Property, Src. 439 lost by the perils in the policy. Until that event happens, the property remains in the assured ; and the freight and her earn- (i)Coolidge ings belong to him until that time. But after the loss has hap- ''• Gloucester pened, the insurers, in virtue of the abandonment, become the f5^Miss.'Rep. owners, and are liable for the repairs and expenses, and are 345. entitled to the earnings of the ship.'(l) (^2) Fchieffelia The same opinion has been given in New York, where it is ^:^^g j^jjjjj* held that 'an abandonment relates back to the time of the loss, ^°- ge^eaho and renders the insurer proprietor from that time.'(2) In case Leavenworth of a stipulation on the part of the assured not to abandon on t-. Deiafieid, 1 account of capture, until after a detention for six months, the ^g'^x^'J^f^rSon court said, that the abandonment when made, after the expira- j,. phoen. Ins. lion of that time, 'related back to the time of the capture.'(3) Co.9 Johns, l. The property thus transferred by an abandonment, is called Salvage re- the salvage, and if this, or any part of it, has been received by ceived by the the assured, or applied to his use, the value of what has been assured or 1 ^1- 1 • 1 1 1 • T • ^u * * lost by his SO received or applied, is deducted in adjusting the amount to ^^^^^^ deduct- be recovered in a total loss. It seems to follow, as a necessary ed. consequence, that if the salvage has been lost, or its amount diminished, by an act of the assured, for which the insurer is not answerable, or by any event or circumstance which is not at the risk of the insurer, the amount so lost, or by which the salvage is thus diminished, is to be deducted in adjusting the amount to be recovered for the loss. The question has already been considered, whether the in- Diminution of surer is at the risk of the loss, or diminution of the salvage on J^J^^gg^^g^^g freight or profits, in consequence of the abandonment of the ^ different ship or goods. (4) Whatever doctrine may be adopted in this valuation in respect, the principle upon Avhich it is founded, does not seem to other policies, authorize a construction by which the insurers of one interest, (4) Supr. 429. or any part of the subject, shall be liable for any loss in conse- '^^2' quence of another insurance upon a different interest, or upon the same subject, any further than such a loss is a direct and necessary consequence of such other insurance, made in the common form. Estrangin says, that any convention between the owner and freighter, cannot affect the rights of the insurer (5) Poth. h. t. under an abandonment.(5) The rights of an underwriter can- ^°- '^^- "• not be affected by any contract, made by the assured with another underwriter, or any other person, except as far as the assured is supposed to reserve the right of making such other contract, and the underwriter to subscribe the policy under an implied condition, that the assured may exercise such right. Upon this principle the amount of salvage, to which one un- derwriter may be entided upon an abandonment, ought not to be diminished in consequence of any particular agreement be- tween the assured and other underwriters on the same subject. It has however been held, in one case, that the amount of sal- vage maybe so diminished, and the underwriter must sustain the loss. Seven open policies being made upon goods, an eighth was made, in which the goods were valued above the invoice price. An abandonment being made, the amount insured in the open policies was such, that if the insurers in those policies received 460 Lotal Loss and Jlbandonment. Chap. XVII. salvage, in the proportion of the amount insured by them, to that of the invoices, the remainder of the salvage would not be so great a proportion of the whole salvage, as the amount insu- red in the eighth policy was, of the sum at which the goods were valued in that policy. That is, the insurers in the seven open policies may have insured, say, seven eighths or the whole of the amount of the invoice prices, and so in consequence of the abandonment, would be entitled to seven eighths or the whole of the salvage. In the eighth policy, a quarter, or sixth part of the sum at which the goods are valued in that policy, may be insured, and consequently the insurer in that policy, would, by an abandonment, be entitled to a quarter or sixth part of the salvage. Now it is evident that the salvage cannot be distribu- ted so as to give them respectively these proportions, and that it cannot be so apportioned, is a consequence of the assured's effecting policies upon the same subject at different values. Yet in a case of this description the court said, that, ' in no case would this consideration create a difficulty as between the parties . \T /^'^ to a policy. Among the underwriters alone, in the distribution Co. 8 Cranch ^f the thing abandoned, would it be necessary to determine on 59. the correct rule to be applied in such a case.'(l) But it has been, in effect, held otherwise in Massachusetts, in a case Avhere the owner of a ship, at first had insured upon her, in a valued policy, the whole sum at which she was valued ; she was then insured in an open policy, and her value was proved to be greater than the sum at which she had been valued in the former policy. An abandonment was made upon the first po- licy, and subsequently upon the second. But the court said, (2) Hieeinson ^^"^^ '^^ ^^^ ^^^^ abandonment carried the whole property of the r. Dall, 12 vessel, there was nothing left to abandon under the second, and Mass. R. 96. that the assured could only recover for a partial loss.(2) The principle of the decision is, that the rights of the underwriters in one policy, cannot be affected by a valuation agreed upon in another policy by the assured. The salrage If, in case of abandonment, the salvage has been lost, or is en- must not be cumbered with liens, or its amount is diminished, otherwise than diminished or jj^ conscciuence of the perils insured against, or by the acts of otherwise ' pcrsons for whose conduct the insurers are answerable, the as- than in con- sured ought either to lose his right of abandonment, or — which sequence of seems in most cases to be the more convenient and practical *= pen • j.yjg — \^Q ought to be charged, in the adjustment of a total loss, with the amount by which the salvage has been diminished. Insurance was made upon a vessel, which had been bottomried previously to the time of her being purchased by the assured, but he had no notice of the bottomry. A constructive total loss * occurred, and the assured made an abandonment. The vessel had, however, been seized, and sold to satisfy the bottomry ])ond. Mr. Justice Thompson, in giving the opinion of the court, said, ' In ordinary cases, immediately on abandonment, the subject would l)ocomc liic property of the underwriter. If, thcri,th(! underwrilor has been deprived of this property in con- sc(juencc of an ituunibrance for whicii lie is not answerable, Sect. 15. Effect as to Rights of Property, S^c. 461 the assured must put him in the same situation he would have been in, had no such lien existed, that is, in the present case, by deducting the value of the vessel, at the time of abandonment, 9V^-fr'^9"^ from the amount of the insurance.'(l) Caincs '^0. This case supports the doctrine, that the insurers are not lia- ble to suffer bj incumbrances not arising out of the risks in- sured against. But the mode of adjusting the loss adopted in this case admits of some question. The assured effected a_^ policy upon the supposition that he owned the whole of the ves- sel ; but it turned out that he owned only a part of her. His interest was the excess of the value of the ship over the amount due upon the bottomry bond at the commencement of the risk. There appears to be no reason why the loss should not have been adjusted, precisely as if a previous policy had been made, to the amount due upon the bottomry bond, with the usual stipu- lation as to prior insurance. An adjustment upon this principle would, in most cases, evidently give a result very different from that of applying the rule adopted in the above case. Where the salvage is encumbered with a lien, arising out of Compensa- the perils insured against, the insurers must take it, subject to tion to salvors, such charge. In case of recapture, or the recovery of property (~) Hartford abandoned at sea, or wrecked, the salvors are entitled to a com- Lord^Ravm pensation or reward, which is also called salvage, and they have 343 ; 2 Salk. a lien upon the property saved, and may keep possession of it 654. until they are paid.(2) Regulations are frequently made fixing ^^ ^^?' ^ the amount of this compensation or salvage atone eighth, fourth, 45 45 47," half, &c. of the value saved,(3) or prescribing the mode of pro- (4) 12 Ann ceeding, for setUing what shall be allowed in each particular ^*^*- 2- c. 18. / A\ cilGCi Jr3.ric» case.(^4; , , , r 2I6 -, Marsh. In ordmary cases of shipwreck, or the abandonment of pro- 548 ; 26 Geo. perty at sea, the persons who save any part of the property are n. c. 19. s. 5, entitled, both in England and the United States, to a reasonable ?;,' '^^lo^^"" compensation and reward, according to the time employed, the s.'kl. danger incurred, and the service rendered. The amount to be allowed to the salvors, in such cases, is, in general, determined by a court of admiralty, which allows one half, or more, or less, of the value saved, according to the circumstances, and the conduct of the salvors.(a) In case of recapture by a public ship, the law of Great Britain allows one eighth, and by a private armed vessel, one sixth, to (5-) 43 Geo. the recaptors.(5) The laws of the United States, allow salvage III. c. 160. in the same proportion in the case of recapture of property be- longing to citizens of the United States : except in case of the recapture of an armed vessel, where one half is allowed ; and in case of recapture, before condemnation of a ship, or of goods, belonging to the subjects of a friendly nation, the same compen- sation is allowed to the recaptors, which would be allowed to recaptors vice versa, in the country to which the owners belong, («) Mason v. The Blaireau, 2 Cranch, 240 ; Peisch v. Ware, 4 Cranch, 347; The Adventure, 8 Cranch, 221 ; The Brig Alerta, r. Bias Moran. 9 Cranch, 359. 462 Total Loss and Jlhandonment. Chap. XVII. (1) Stat. 1800, c. 168. [xiT.]s. 1.3. The insurers are not liable for wages earned before a total loss takes place. (2) Froth ing- hamr. Prince, 3 Mass. Rep. 563. (3) CofTin r. .StoKT, 5 Mais. Hep. for the recapture of property belonging to citizens of the United States.(l) The claim for salvage, as between citizens of the United States and those of other countries, has, in some instances, been regu- lated by treaty.(a) In all these cases the insurers against capture, are either lia- ble to pay the expenses of salvage, as a partial loss, or upon abandonment, they take the property subject to the charges. After the insurers become owners of the ship, in consequence of abandonment, they are, like any other owners, liable for mariners' wages, but they are entitled to the ship, free of any incumbrance or lien for wages, earned before the time to which the abandonment relates, in respect to the ownership of the ves- sel. A question has occurred, as to the distinction between the claims of the seamen for wages, as such, and their right to com- pensation for saving the property, in cases of shipwreck, with salvage. The insurers have no concern with the wages earned before the occasion of the abandonment, since the wages were earned under a contract between the sailors and other persons, relating to property in which the insurers had no interest. A vessel insured on a voyage from St. Ubes to Newburyport, Avas, in the course of the voyage, cast away upon Cape Cod ; and the cargo was wholly lost, but a part of the wreck of the ship was saved, to the amount of 879 dollars, after deducting the expenses of salvage. The assured made an abandonment. They ' had been compelled to pay' the wages of the seamen, up to the time of the shipwreck. The amount of wages from St. Ubes, was 560 dollars, and from London, the ship's previous port of departure, 724 dollars. A question was made, whether the assured were entitled to recover either of these sums from the underwriters. It was decided that they were entitled to re- cover the sum of 664 dollars. (2) This was probably the amount of wages from St. Ubes, with the interest for a little more than three years ; this being the period between the time of the ship- wreck and that of rendering judgment. In this case it is stated, that the proceeds of the materials of the ship saved, that came to the underwriters by the abandon- ment, were of a certain amount after payment of salvage, and it was decided that the insurers were liable to pay the wages out of that amount, which seems to make the case rest upon the doctrine, that the insurers, in consequence of the abandonment, became liable for wages earned before the accident, and on ac- count of which the abandonment is made. But in a subsequent case. Chief Justice Parsons, by an incidental remark, puts the claim for wages, in such a case, upon the ground of salvage. He says, ' Wages would have been lost by the wreck, had not sufficient been saved to pay them. They are then a charge on the property saved, in the, nature of expenses towards the sal- vaire.''(^) (rt)Convontion of 1782, with the Netherlands. Treaty of 1783, wilh Sufdeii, art. 17, 18. Treaty of 1799, with I'russh), art. 21. Sect. 15. Effect as to Rights of Property, Src. 463 Mr. Justice Story is of opinion, that this is the only ground upon which the above case can be supported. He says, ' The case of Frothingham v. Prince, has been pressed upon the court, as a direct authority, to prove that the payment of wages does not depend upon the earning of freight, if the ship or any of her materials, equal to the wages, remain after the voyage. No reasons are given for this decision. Perhaps it may have turn- ed upon the ground, that, under the circumstances, the seamen were entitled to salvage equal to their wages. If, however, it be incapable of this explanation, as I confess, from an examina- tion of the record, I think it is, the most that can be said, is, that it is a single case, standing alone against the current of authori- ^^^^ 2 GallU ties.'(l) son, 183. A case somewhat similar, has come before Mr. Justice Story. A ship sailed from Newport to Gibraltar, and there delivered her cargo, and proceeded thence, in ballast, to Ivica, where she took on board a cargo of salt, with which she sailed for Provi- dence, but was wrecked in the course of the voyage, on Dutch Island in Narraganset Bay. The seamen remained by the wreck three days, doing duty, and saved a principal part of the sails, rigging, cables, and appurtenances of the ship, more than sufficient in value to pay their wages up to the time of the shipwreck. The ship was abandoned to the underwriters, by whose agent the seamen were discharged. Mr. Justice Story held, ' That the seamen Avere entitled to their full wages, up to the period of arrival, and during half of the time of the ship's slay at Ivica. But the question remains, whether the seamen can claim wages, as such, for the homeward voyage. It appears to me that upon the established doctrines of our law, where the freight is lost by inevitable accident, the seamen cannot recover wages, as such, from the ship-owner. But I am clear that upon principle, the seamen are entitled to salvage for their labour and services, in preserving the wreck of ship and cargo, or either. Assuming that the crew were not discharged from their contract by the shipwreck, but were still bound to labour for the preservation of ship and cargo, I am of opinion that this does not disable them from claiming as salvors, for extraordinary exertions in cases so perilous. It cannot be, that they are bound to labour when there is no possibility of earning any reward, and if, by the nature of the case, they are excluded from wages, that very circumstance raises a title to compensation by way of salvage.' The court intimates, that the case of shipwreck ought to be an exception to the rule, that the earning of wages depends upon the earning of freight, — to the extent of the value of the property saved ; but concludes that the rule, as legally establish- ed, is not subject to this exception. The judge accordingly ap- proves of those cases in which the wages are adopted, 'as a mode of ascertaining and fixing the salvage. The wages reco- vered in cases of shipwreck, are recovered in the nature of salvage, and as such form a lien on the property saved.' 4(i4 Total Loss and Abandonment. Chap. XVII. A question was made as to the party by whom this charge was to be borne ; and the court was of opinion, ' that in this case it must be borne by the underwriter on the ship. It is not like the ordinary charge of seamen's wages, which are a charge upon the ship-owner, and are to be borne by the freight ; but it is an expense in saving the materials of the ship, for the benefit of the underwriters on the ship, and as they exclusively receive CathaHnes^2 ^^® benefit, they are to receive it cum outre. The case of Fro- Mason's Rep. thingham X. Prince is directly in point, and, in my judgment, 319. stands upon the true principles of insurance.'(l) The court no doubt, here considers the allowance to the seamen, in that case, to have been made in the nature of salvage ; since the case would not otherwise be an authority in support of the opinion here given. Abandonment Although a valid abandonment gives the underwriters the ad- to several in- vantages, and subjects them to the liabilities of ownership of ^^oini^.\iT^ the property, yet it has been held, that an abandonment of the them liable as same subject, to different underwriters, does not make them joint partners. owners, and jointly liable as copartners. A ship being aban- /^N TT -x T doned to twenty-three different underwriters, it was held that (2) Unit. Ins. , .*'.,,.,, r • i Co. V. Scott 1 they were not jomtly liable, as copartners, tor repairs done upon Johns. 106.' the ship. (2) The insurers An abandonment is not necessary in order to give the insu- have an equi- rers a right to receive the proceeds of claims arising out of table interest j^gggg vvhich thev have paid. A mere payment of a loss, whether in clciitns lor »/ r \. j ^ ^ ^ remuneration partial or total, gives the insurers an equitable title to what may for losses paid, be afterwards recovered from other parties on account of the v/ithout aban- j^gg^ ^pj^g effect of the payment of a loss, is similar, in this re- spect, to that of an abandonment. Thus, if the risk of barra- try, or any other misconduct of third persons, is insured against, and a loss is paid on this account; and subsequently the assu- red recovers the damage from the master or other persons, whose misconduct was the cause of the loss, there can be no doubt that the insurers would be equitably entitled to the da- mages so recovered, in the proportion in which they had made indemnity for the loss. The same principle is applicable to cases of capture and arrest. A cargo being insured on a voyage from New York to Leghorn, the vessel was captured, in the course of the voyage, by a French privateer, and carried into Porto Ferrajo. The ship and cargo Avere decreed to be restored, from which decree the captors ap- })ealed. The property was, however, delivered to the consignees, on their giving bonds, to the amount of the appraised value, to answer to the final decree. The property insured, was ap- praised at a value exceeding that at which it had been insured ; and as it was finally condemned in the council of state, and the condemnation approved by the emperor, the consignees were compelled to pay their bonds. 'J'he goods, however, were sold at liCghorn. at a value exceeding the amount at which they had been appraised. The assured made no abandonment, as he wished to avail liinisclf of the state of the markets at Leghorn, but demanded Sect. 15. Effect as to Rights of Property, ^t. 465 from the underwriters, as a partial loss, at least the whole amount at which the property was valued in the policy, if not the whole sum paid, on account of it, upon the bonds given by the consignees. A verdict Avas given in favour of the assured, ' for the whole sum mentioned in the policy.' The court ap- proved of the verdict, and expressed an opinion that the assured was entitled to recover, as a partial loss, the whole amount paid upon the bond, although it exceeded the whole value at which the cargo was insured. Chief Justice Kent said, 'Nor is the assured, in this case, to be limited to the prime cost of the sub- ject. It is a rule of computation which ceases when the va- lue can be ascertained, as in this case, by a more obvious rule, namely, the sum actually paid.'(«) In regard to the rights acquired by the underwriters, by the payment of this loss, Chief Justice Kent, giving the opinion of the court, said, ' Here the loss is equal to a total loss, and the assured must recover the amount of the bond, (at least as far as the subscription covers it,) or nothing at all. To attempt to as- certain the value of the spcs recupcrcmdi, as it respects the claim on the French government, and to deduct that value from the (*) Vide recovery, appears to me to be useless. (*) It would be perfectly ^"^P'- ^84. arbitrary to undertake to estimate the worth of such a hope. If such a hope does legally exist, so that it can be judicially re- garded, the assured ought to renounce it in favour of the in- surer, or not recover at all. But there is no existing hope of re- covery in this case. The law had pronounced a definitive sen- tence in the highest tribunal. Any chance of reimbursement under that sentence must be the result of future negociations Claims aris- between the two governments, and that is a subject totally unfit '"? ^^°^ the for the investigation of a jury. No court is competent to act LY"*^"* * upon such speculations, it r ranee should, at any luture period, perfy captur- agree to, and actually make compensation for the capture and ed and con- condemnation in question, the government of the United States, ^^"^"ed. to which the compensation would in the first instance be pay- ^.s ^ 11 111 1 1-1 • 1 1 (^) (j^racie v. able, would become trustee to the party having the equitable New York title to reimbursement, and this would clearly be the insurers, Ins. Co. g if they should pay the amount of the bond.'(l) ''°'''^^- ^'•*- ^/^ In this case the payment of the loss, or the liability to pay it. The loss paid in consequence of abandonment, gives the insurers an equitable bythegovem- interest in the claims arising from the property. The insurers "Jj^^j^'g ufg 7 are considered as purchasing the property, as far as they pay, Wiiiiam Pitt. or are liable to pay, for the loss of it. Upon the same principle, the underwriters on the life of William Pitt were held to be en- (a) The same court adopted a rule, similar in principle, in the case of Suydam v. Mar. Ins. Co. 2 Johns. 138. The amount due in a partial loss is, by this rule, made to depend upon the state of the markets ; the underwriter receives a premium according to the in- voice value, or the valuation, but pays losses in reference to some other value. This leads to the inconsistency of paying more than the propert}' is worth for saving it; since, as between tlse parties, it is worth the amount at which it is insured. Vide Supr. 380, 381. 59 466 Total Loss and Abandonment. Chap. XVII. (1) Godshall r. Boldero, 9 East, 81. See also Blaau- pot r. Da Costa, 1 Eden, 130. titled to what was paid by the government, after his death, to the assured, in discharge of the debt due to him from Mr. Pitt, which constituted his insurable interest. Although a total loss had taken place under the policy, by the death of Mr. Pitt, yet, as the government subsequently paid the debt on account of which the insurance was made, it was held that nothing could he recovered from the insurcrs.(l) Under the policy the in- surers were liable to pay the debt, as guarantors or obligors in an agreement of indemnity ; and they were, therefore, entitled to have the benefit, directly or indirectly, of what was paid by the debtor himself, or by others on his account. 98. Freight earn- ed instead of that insured. A'-CFX Some British ships having been captured by the Spaniards, J the British government ordered reprisals, by making capture of Spanish ships; and distributed the proceeds of the property so captured, among those who had lost their property by Spa- nish capture. The insurers, who had paid for losses by Spanish captures, claimed the proceeds of the ships and cargoes taken hy way of reprisal. Lord Hardwicke said, ' The person ori- ginally sustaining the loss was the owner ; but, after satisfaction made to him, the insurer. No doubt, but from that time, as to ("^ Randal ^^e goods themselves, if restored in specie^ or compensation . Cockran, 1 made for them, the assured stood as trustee for the insurer in proportion to what he paid. '(2) Upon the same principle the insurers on freight are entitled to the benefit of other freight earned instead of that which is insured. Chief Justice Gibbs, speaking of a loss of the freight insured, in consequence of a loss of the cargo, said, * If the ship had brought home another cargo, that would have been a sal- vage on the original freight ; for though, when the cargo was taken on hoard, the insurance was on that specific cargo ; yet, if the ship, having heen driven back to her original port of lad- ing, had taken another full cargo on board at a lower freight, the assured would have been entitled to have recovered the dif- ference.'(3) A case arising upon a charterparty has been decided upon the same principle. The charterer agreed to pay dead freight, if the Russian government should not permit the vessel to load. This was equivalent to an insurance against that risk. The Russian government did not permit the vessel to load, but the captain procured a cargo at Stockholm. It was decided that the charterer should pay tiie freight stipulated in the charter- party, after deducting that earned from Stockholm.(4) But a dilTcrent decision was given in another case, the court saying that the earning other freight was the owner's affair, with which the charterer had nothing to do. (5) But the two cases only dif- tf-mpttoBhow fer in respect to considering the stipulation to be in the nature these two rases to Vje consistent. Whether by an abandon- ment the in- (3) Green v. Roy. Ex. Ass, Co. 1 Marsh. Rep. 447. S. C. 6 Taunt. 68. (4) TuUf r r. J:ftaniforth, 11 East, 232. rs) Bell r. Tuller, 12 East, 497. n. See 12 East, 494. an at- of an insurance; since, if it be considered to be of this charac- ter, there can be no doubt of the correctness of the first de- cision. It li:is been incidentally implied, in some instances, that the in- suicrs have an option in respect to accepting of the salvage ; but this (jucstion docs not seem to liavc been very particularly Sect. 15. Effect as to Rights of Property^ S^c. 467 considered. It is a question of some importance on account .urers una- of the liabilities they may be under, as owners of the salvage, voidahiy be- on account of freight and other charges. An abandonment of ^^'^^ owners, goods, where the insurers thereby become owners of the salvage, jected to the makes them liable for the freight, pending at the time, which consequent may be finally earned. If the insurers take the goods at all, H^iijiiities, they take them subject to this incumbrance.(l) (i) Union Ins. But cases sometimes occur in which the goods are not worth ^°- ^\^?^' , the freight. This gives occasion to the question, whether an cases at N.P^. abandonment of the goods, not accepted, makes the insurers 128. liable to pay the freight. But this question arises only in case of deterioration of value in consequence of the perils insured". * against; for it cannot be supposed that by an abandonment of goods insured against arrest and detention only, the value of which is reduced below the amount of freight by sea-damage, the insurers can be made liable, not only to pay a total loss to the assured, but also the amount of freight to the owners of the vessel. The loss by freight, in this case, arises from a peril not insured against. The assured ought not only to pay the freight, but also to account to the insurers for the value of the goods, in a sound state, supposing the damage to have hap- pened before the arrest or detention. Until the total loss by arrest or detention at least, he is the insurer against sea-damage, and he ought to be accountable as such. But if the sea-da- mage happen after the constructive total loss by arrest or de- tention, the liability of the insurers to bear the consequent loss of freight, depends upon the question, whether they are un- avoidably^, and independently of their consent, made owners of the property, and subjected to the consequent liabilities, by an abandonment. From the authorities already cited as to the liability of the insurers for loss by freight, consequent upon damage by the pe- rils insured against,(2) the better opinion seems to be, that this (2) Supr. 377. is not among the effects of the usual perils for which they are liable. If this doctrine is adopted, it follows that the insurers may pay a total loss, but refuse to accept of the salvage, and thus avoid the charge in question. But upon the same principle on which the assured is required to elect immediately whether to abandon, the insurer ought to be required to signify imme- diately that he refuses the salvage on this ground, since the con- dition of the parties would not be reciprocal, if the insurers might lie by, and in the event accept of the salvage if it should prove to be of any value, but throw it upon the hands of the assured, in case of the charges exceeding the value. The case which has gone the greatest length against the in- surers in this respect, only makes them liable to lose the bene- fit of the salvage. Corn insured without any exception of ave- rage loss, was so much damaged that it was sold for 67/., the freight due upon*" it being 80/. A question was made before Lord Hardwickc, whether the assured should recover for the whole value at which the corn was insured, or be charged with the 67/. in deduction from that value. It was proved to be the 468 ' Total Loss and Abandonment. Chap. XVII. usage, where the salvage exceeded the freight, to deduct the freight out of the salvage, and make up the loss upon the differ- ence. Lord Hardwicke, C. J. was of opinion, that within the (i)Boyfield reason of this usage, the assured was entitled to recover the f. Brown, 2 whole Value at which the corn was insured, without any deduc- Str. 1065. tion on account of salvage.(l) But the effect of an abandon- ment, as to ownership, and the consequent liabilities, did not come under consideration in this case. Section 16. Effect as to Conduct oj Agents. (2) Lee v. ' The master or whoever has charge of the property, says JBoardman, 3 jyjj,^ Justice Parker, becomes instantly, upon abandonment, the ^j^ss. ep. ggpj^^ Qf l^j^g insurer.'(2) And the court in New York say, (3) Gardiner ' The disposition of the goods saved, as made by the consignee, r. Smith, 1 while he acted hond Jldc, ought to be at the risk and for the Johns. Cas. benefit of the insurer.'(3) A ship being captured and condemned, was abandoned on the first of June. On the third of the same month the captain re- purchased the vessel. In an action on the policy for a total loss, Kent, C. J. said, ' The master, in consequence of the aban- donment, became the agent of the insurers. The purchase of the vessel by the captain, was for the benefit of the insurer, if he chose to take it. Whatever might have been the merit or demerit of his conduct, is immaterial in the present case. The loss continued total to the time of the abandonment. If (4) Jumel t'. j^j^g captain had been afterwards wanting in the faithful dis- Mar. Ins. Co. , r i • i iii i ii i- 7 Johns, 4-23. charge ot his trust, he would have been answerable to the m- & 424. surers.X4) The captain's It being provided in a policy upon the cargo, that, 'in case of conduct as to loss or misfortune, it should be lawful and necessary for ihe as- making an sured, or his factors and servants, to labour, &c. The pro- appeal IS held ' , , r. • • 1 • 1 • 1 • to be at the P^rty was captured by a British privateer, and carried into risk of the in- Nevis, where the cargo was condemned, on the 25lh of No- ?urcTs. vcmber, 1807, as enemy property. An abandonment was made on the 11 th of January, 1808. The insurers objected that the master ought to have appealed from the sentence of the vice-admiralty court. Yates, J. ' I can discover no reason why the insertion of the word necessary should essentially alter the construction of the above clause. It imposes no additional du- ties upon the master. He was before; bound to labour diligent- ly for the recovery of the property, yet this docs not affect the ri^ht of abandonment. By abandoning, the assured 3'ields uj) f '>") G-irdcrc ^'^ '^''^ •"'^crcst in the subject, and the captain, from that time, v. Col. Ins. becomes the agent of the insurers. The captain, consequently, Co. 7 Johns, is answeral)le to the insurers for his default, if any exists. '(5) •''';';,., , ,, The same doctrine prevails in iMigland, where a valid aban- (C) Mitchell , .• I 11 . < r ,1 • 1 r .1 1 r r. Edic 1 'i'. donmcnt is liold to Iranslcr the risk 01 the solvency ot agents, K. «u». to the insurers. (G) And ('hicf Jusiice Dallas says, ' if the loss hapjicns in this counlry, and notice of abandonment is duly Sect. 16. Effect as to Conduct of Agents. 469 given, from that moment it becomes the duty of the underwriter to send down an agent.'(l) Where a cargo was insured, with an agreement ' not to aban- CompromiBe don, if captured, until six months after notice,' the vessel was made by the captured by a French privateer, on tlie 31st of March, and f^r^* t^" ab'an- carried into Calais. Intelligence of the capture was received donment. in New York, on the 26th of May, and on the same day notice Avas given to the underwriters. On the 2Cth of July, the mas- (i) Hudson ter, at Calais, made a compromise with the captors, whereby he ^- Harrison, agreed to relinquish both ship and cargo to them, on receiving ^- ing 64,000 francs, being about one quarter of the value. On the 26th of November, it being six months after notice, the assured abandoned. The court said, ' The capture created the total loss, and the special stipulation in the policy only suspended for six months the general right to abandon. The abandon- ment related back to the capture, and took its operation and ef- fect from that loss. The only question is, whether the act of the captain in the intermediate time destroyed or impaired the assured's right. The captain, acting with good faith, and upon the best advice that could be obtained, entered into a composi- tion with the captors. The parties to the policy neither author- ized, nor have since adopted, the act of the captain ; but as he was ex necessitate, the mutual agent of both parties during that time, to do what was right, his acts, done in good faith, and for (2) Clarkson the benefit of all concerned, could not prejudice the rights of jj^^ ^J^'g either under the contract.'(2) Johns, l. After capture and abandonment of a cargo, an agent appoint- ed by the assured to prosecute a claim for the proceeds of the goods at Matanzas, recovered and received two thirds of the proceeds, deducting expenses. A question was made as to the party for whom he should be considered the agent. The court said, ' The composition made by the agent was made in good faith. It was made for the benefit of the insurer, to whom the person entrusted with the management of the business must be considered the agent. It was a discretion within the scope of his .g jyjjijer .. authority. The money is still in the hands of the foreign agent. Ue Peyster,' He may fail, and the assured ought not to run that risk.'(3) 2Caines, 30i. A cargo insured was captured by a French privateer, and The cargo be- carried into Malaga, and there condemned as lawful prize, by in? captured, the French consular court. On receiving intelligence of the glJ^i^^^^g^^^" /Capture, the assured, at New York, abandoned, and the under- agents of the writers paid a total loss. While proceedings against the cargo assured were pending in the consular court at Malaga, the cargo, being unc^eraprovi- damaged by sea-water, was sold, as it was liable to detcriora- pj,n(jin„ p^g. tion, if kept on board. A mercantile house at Malaga, bought ceedings, is the cargo, at the request of the captain, for the benefit, and on subsequently account of the assured, ' and whomever else it might concern ;' ^""f^r^",'!'^ ' . ' ... • (• \. an abandon- considermg themselves as actmg in the capacity oi agents oi mentis made, the assured, to whom they would have had recourse for pay- and a total ment of any loss on the purchase. But the care;o sold for near- |oss paid ; 1 • ^" • c • 1 1 TIT 1 I 1 the insurers ly twice the amount given tor it b)'- the Malaga house ; accord- ^^^ entitled ingly, that house held about fourteen or fifteen thousand dollars, to the benefit 470 Total Loss and Abandonment. Chap. XVII. of the pur- chase. (*) Ord. Louis XIV. h. t. a. 66, 67 ; Code de Com. 1. 2. t. 10. s. 3. a. 206 ; 2 Val. 59, 60 ; 1 Emer. 464. c. 12. s. 21. (t) 2 Burr. 699. as agents, which belonged either to the assured, or the under- writers. This amount ot property was shipped to the assured^ by whom it was received in New York, and the question was, whether they could retain it, or were liable to pay it over to the underwriters. Chief Justice Kent, giving the opinion of a majority of the court, said, ' The assured abandon, and the underwriters accept and pay. They were then substituted for the assured, and suc- ceeded to the benefit of the acts of the agents abroad. The merchants at Malaga acted nominally as agents for the assured, but, in reality, they were agents for the party having the ulti- mate claim to the property.' ' There is no ground for considering the purchase as made for the assured, in the character of strangers to the property ; it was made for them as having an interest in it, and with intent to mitigate the loss. The law of abandonment applies to such a case, with the greatest justice and good policy, in making the previous instructions, and all acts of the agent, enure to the in- surer.' ' The insurer was not bound, unless he pleased, to accept of the purchase at Malaga ; nor was the assured. The agent pur- chased at his peril. There can be no risk, therefore, that this doctrine will involve insurers in hazardous mercantile concerns. '(*) 'If, after capture or condemnation, the owner recovers, or takes his captured ship, the insurer can be in no other condition than if she had been recovei'ed or taken before condemnation. (t) He must bear the loss actually sustained, and can be liable for no more. After condemnation, the property is changed, so that a complete title can be transferred from the captor to a third person, but this doctrine docs not apply between the assured and insurer, so as to authorize the assured to be the purchaser ; if he is, and still claims a total loss from the insurer, he must ten- der him the benefit of the purchase. This rule is essential to jireyent fraud.'(j) Mr. Justice Thompson gave no opinion, and Mr. Justice Livingston dissented from that of the other judges. Speaking of the condemnation of the cargo at Malaga, he said, 'The mo- ment sentence is pronounced, the right of the captors to sell, is complete, and to such a sale all the world are, or may be, parties. The insurer may buy if he pleases, so may the origi- nal proprietor, or any stranger. He who does so, does it at his own peril ; as the owner, if he purchase, cannot throw the loss (;[) The Chiof Jti.etiro (loes not moan lliat the rij>-hts and liabilities of tho parties will dj^pcnd upon any tender of the bcnelit of tbe pur- chase, accordinj^ to the riik' in the French Code, Liv. 2. t. 10. s. 3. a. 207. Jlc says, in a sul)soquent case, that we have no such rule. Gracie v. N. York Ins. Co. 8 Johns. 18'i. He can only moan that the insurers arc entitled to thr bencHt of the purchase, if they |)ay a total h)ss. A npfi;loct on tlic part of tlic assured to inak*; any tender or oder, can have no efl'cct, unUvss it Ix; construed to be a rtvocalioii of tlie al»aiidonnieiit. Sect. 16. Effect as to Conduct of Agents. 471 upon the underwriter, so neither can the latter come in for the profits.' The court, however, decided that the insurers were entitled to the benefit of the purchase.(l) A vessel having been captured was abandoned in due time, The captain rnd afterwards restored; when the master, a Spaniard, who had and ostensible been appointed by the assured, and was ostensible owner, went o^^/^jf ^^es- ofF with the vessel, and gave no account of it. Mr. Justice gei that had Putnam, in giving the opinion of the court, said, ' If the ostensi- been aban- ble owner became the agent of the underwriter after the rcsto- ^°^^^^T^^". ration, the underwriter would be answerable for a total loss; ty^e. but the ostensible owner was not the agent of the insurer, but (i)Unit, Ins. of the assured. The loss occurred by reason of his fraud. Co. r.Ilobin- The assured has sustained a loss, not from any of the perils in ^^^i ^ ^^\"'^.^' the policy, but from the act and fraud of one lor whom the un- ^^.^.^ ", johnj!'* derwriter is not answerable.'(2) 592. The expressions in which this opinion is given, seem to be at (2) Smith i-. variance with the preceding cases, in which an abandonment is ^°"g°'j{g considered as having the effect of making the captain, or other jjl! * person having charge of the property, the agent of the under- writers, and it is not intimated that the assured remains answer- able and guarantor to the insurers for the conduct of such agent ; but in some of the cases it is, on the contrary, expressly said, that the insurers are at the risk of his misconduct. The circum- stance that the captain was ostensible owner, and that the as- sured had agreed ' to claim the property as Spanish, until ac- quital or condemnation,' may perhaps distinguish the last, from the preceding cases. The court, however, says,' The abandon- ment was undoubtedly made for sufficient cause ;' which involves the grounds of the decision in some uncertainty. It is said, in the cases upon this subject, that, in consequence of an abandonment, the captain or consignee, who has charge of the property, becomes the agent of the insurers from the time of the abandonment. This implies very distinctly, that his conduct, whether prudent or imprudent, honest or fraudulent, is at their risk. If it were not so, the captain or consignee ought to be considered the subrogated agent of the assured. Upon this construction the abandonment makes the assured the agent of the insurers, and the assured has substituted another person, namely, the captain or consignee in this agency, for whose conduct he is answerable until such substitute is recog- nised by the insurers as their immediate agent. This makes the case the same as that of the appointment of a sub-agent by the agent, in ordinary cases, in which the employment of sub- agents is authorized. The doctrine, that the assured himself is the only authorized agent of the insurers, in virtue merely of the abandonment, may have been adopted in the case last cited ; and there are very strong reasons in favour of this doctrine. The assured appoints the agent, gives him instructions, and conducts the correspond- ence with him. He is in fault, if the agent has been injudi- ciously chosen, and he is generally the best informed, as well 472 Total Loss and Abandonment. Chap. XVII. after, as before the abandonment, of the proceedings of the cap- tain or consignee, and is in a situation to exercise the most effect- ual control over his conduct. Lord Mansiicld and other judges, say, in numerous instances, that the conduct of the captain is at the risk of the insurers, while he acts bond Jide^ and according to the best of his judg- ment. This cannot be strictly correct, since in other instances it is said, that the mistakes of the captain before abandonment, at least, are at the risk of the assured. But then, again, it can- not be laid down as a general doctrine, that the mistakes of the captain, of whatever kind, are at the risk of the assured. Thus, when the captain runs the ship ashore in consequence of mistak- ing a light, which had been erected after the ship sailed, and Merchflas* ^^^ which mistake he was not to blame, it was not intimated, and Co. 2 Mason's the insurers did not think of taking the ground, that the assured Rep. **, must for this reason bear the loss.(]) Many other cases have occurred of the same import. It accordingly appears that the insurers are not always answerable for consequences, although the captain acts bond fide,hut that the assured, in some instances, are answerable for his mistakes, and, in others, the insurers. The meaning of the judges, in these instances, must be taken (2) Supr. 192. ^^ reference to the circumstances of which they were speaking, 408. and subject to a distinction before suggested.(2) that before abandonment at least, if the captain or other agent uses his dis- cretion within the limits of his authority, and acts bo7id Jide, the insurers are liable for losses occasioned by the perils insured against, although some error of judgment in the captain or other agent, may have contributed indirecdy to such losses. The same rule as to the agent's exceeding his authority, applies to the conduct of the captain, after an abandonment. Where he applied the proceeds of the cargo in repairing the ship, and also in equipping her as an armed vessel, without any orders so to do, it was held that the underwriters, to whom the ship had been abandoned, were liable to the shippers, only for the proceeds of the goods expended in necessary repairs, since this was the only cio. tj"scou' P*^^'^ °^ '^hc expenditure incurred within the authority with which 1 Johns. IOg'. the captain was invested. (3) In regard to third persons, the rules concerning the liability of the captain's principals, for his acts as an agent, are the same respecting his conduct after, as before, an abandonment ; and are the same which are gene- rally applicable to the conduct of agents. Wc have seen also, that if the captain or other agent, by his (4) Supr. 407. misconduct, or his mistake in overstepping the limits of his au- 408. thority, makes a loss total, which, by the necessary and inevitable Touro"'i4 ^* consequences of the perils insured against, was only partial, the in- Maas. kep. sufcrs arc not thus made liable for a total loss.(4) The decision 11'^. above clted^(.5) unless it be supposed to proceed upon the agree- ment ' to claim for the property as Spanish,' extends the same prin- ciples to the conduct of the cajjlain after a valid abandonment; and makes the assured the immediate agent of the insurers, and the captain or consignee the sub-agent of the assured, whom he is authorized to emj)loy, for the consequences of whose conduct Sect. 17. Effect of the Ahandonme^it of the Ship, 8^c. 473 the insurers are answerable while such sub-agent acts with good faith and within his authority, but for whose acts done fraudulently and without authority, whereby the salvage is di- minished, the assured is answerable to the underwriters, until they recognise the captain or consignee as their immediate agent. And there are certainly very strong reasons in favour of this doctrine. Section 17. Effect of the Abandonment of the Ship as to Freight. The effect of the abandonment of the ship, as to the title to (i) Tom. 2. the freight, has been much discussed in France. Va]in(]) says, p- lis. des the net freight earned subsequently to the commencement of ^^^"'■- ^- ^'^^ the risk, goes to the underwriter to make up for the diminution of the value of the ship in the mean time. Emerigon is of the p 22i"^c* \l same opinion.(2) And upon the same principle he thinks that s.'o. an abandonment, in case of shipwreck, gives the insurers the benefit, not only of the net freight that may become due, of that which is pending at the time of the accident, but also of the net r^\ Tom. 2. freight earned in consequence of delivering goods at the port of p. 222. c. 17. their destination, previously to the time of the shipwreck.(3) ^- ^• Estrangin is inclined to the same opinion, but he thinks that the \q ^ '^^ ' code of commerce(4) has settled the question, by providing that i97. ' the freight of merchandise saved, where it has been paid in advance, shall make a part of the subject of an abandonment of the ship, and shall belong to the insurers, saving the rights of lenders on bottomry, seamen's wages, and the expenses during the voyage.' He is of opinion, that this article virtually excepts from the abandonment, the freight earned previously to the accident, by the delivery of goods according to the bills of (5) Poth. par. According to the French law, therefore, an abandonment gives the underwriters on the ship, the benefit of only the freight pending at the time of the loss. As freight is not an insurable interest in France,(fl) the rules there, respecting the effect of an abandonment of the ship upon the freight, are different from those adopted in Great Britain and the United Stales. In case of shipwreck, without the loss of the cargo, where the whole, or a pro rata., freight becomes due in consequence of the con- signee's accepting the goods at an intermediate port, such freight will, by the French law, go to the insurers to whom the ship is abandoned. Whereas, in England and the United States, it is always taken for granted, that an abandonment of the ship does not include such freight. (a) At the time of compiling the new code, the question of per- mitting the insurance of freight and profits, was very much discus- sed ; the former prohibitions were however continued. 60 474 Total Loss and Abandonment. Chap. XVII. Freight earn- ed before the loss, does not go to the underwriters upon the ship. (1) Luke V. Lyde, 2 Burr, 882. See re- mark of Le Blanc, J. 4 East, 44. Mortgagee not entitled to freight, until he has posses- sion of the ship. The ship and charterparty assigned to different per- sons. (2) Chinnery V. Black- burne, 1 H. Bl. 117. n. (3) Morrison V. Parsons, 2 Taunt, 407. A transfer of the ship is held not to include the pending Ueight. A ship, upon a voyage from Newfoundland to Lisbon, was captured, whereby the voyage was broken up, though the ship was recaptured and brought to England. The ship was aban- doned to the underwriters, but a freight pro rata being due for the part of the voyage performed before the capture, this freight was considered to be due to the owners, and no question was made as to its belonging to the underwriters to whom the ship had been abandoned.(l) If the captain, after his own ship is lost or disabled, procures another to carry on the cargo, it is not any where intimated that the insurers will be entitled to any benefit accruing from the earning of freight in this case. But it has been a question much considered in England and the United States, whether an abandonment of the ship includes the pending freight, towards the earning of which something was done before the loss, but the earning of which is completed, after the accident abandoned for, by the same ship, on her being repaired or released from detention. One mode of considering this question is by a comparison with other transfers of the ship. In case of a mortgage of a ship, Lord Mansfield and the other judges were of opinion, that,' till the mortgagee takes possession, the mortgagor is owner to all the world ; he bears the expenses and is to reap the profits;' and accordingly, that the freight earned, or which becomes due after the ship is mortgaged, but before the mortgagee is in actual possession of the ship, does not belong to the mortgagee.(2) The owner of a ship, having on the 17th of August entered into a charterparty to carry a quantity of tar from Stockholm to Plymouth, subsequently, on the 26th of August, and before the ship sailed on the voyage, executed a regular bill of assign- ment of the ship to Henry, the master, and about five months after the ship had sailed, he assigned the bill of lading to one of his creditors, Hamilton, as security for a debt. The vessel having performed the voyage, the question arose, whether the freight was equitably due to Henry, to whom the ship had been assigned, or to Hamilton, to whom the charterparty had been assigned. Heath, .J. ' Hamilton could not be in a better situa- tion than the original owner was at the time of assigning the chartcrpai-Ly, and he could not, after the assignment of the ship, prevent Henry from receiving the debt.' Lawrence, J. ' The right to the freight, subsequently accruing, must belong to the assignee of the ship as incident thereto.XS) While a ship was on a voyage from Portsmouth to Port Ma- hon, the owner transferred her on the 14th of September, and she arrived at Poi-t Mahon on the 24th of October following. The owner became bankrupt, and a (juestion arose, whether the freight due at Port Mahon belonged to the person to whom the vessel was transferred, or to the assignees under the bankruptcy of the original owner. Lord Ellenborough, C. .T. 'We cannot say that the covenant [of chartcr})arty] is transferred to the as- signees of the ship, by the assignment of the property in the sliijj, it) the sanu; manner as certain covenants are said to run Sect. 17. Effect of ihc Abandonment of the Ship, S^c. 475 with land.' And the freight was accordingly held to belong to (0 Spiidt v. the assignees under the bankruptcy.(l) East'^^As^ The preceding cases relate to the assignment of the ship in ' " ' the usual modes, and argurtients have been drawn from such as- signments, to the case of transfer by abandonment. The effect of an abandonment upon the pending freight, was very elabo- rately discussed in the cases arising in England out of the Rus- sian embargo of 1800, and thence called the Russian embargo cases. In case of detention by that embargo, from November, 1800, Russian em- until the following May, the assured abandoned both ship and ^'^'^S^ cases. freight to the different sets of underwriters on each. A total loss was adjusted on the policy upon the ship, on the 19th of January, 1801, payable in one month, as usual ; and a total loss was adjusted on the freight on the 1 1th of February, payable in one month ; with an agreement on the part of the assured, ' on payment, to assign all his right of recovery,' &c. of freight, to certain persons named, for the benefit of the insurers, as far as the policy covered the freight. The total loss was paid by the underwriters according to the adjustment. The embargo being taken off in May, the vessel brought home her cargo, and earn- ed freight for the voyage insured. The assured had made no ' assignment of the ship or freight, otherwise than by an aban- donment of each. The freight was received by him, and was claimed by both sets of underwriters. It was decided in this case, that the assured should pay over to the underwriters on the freight, the gross freight, as salvage, without deducting any of the expenses of navigating the ship and earning the freight. The court considered the insurers to be entitled to the whole freight, on the ground of the agreement made by the assured to assign it. But they said, if the rights of the two sets of underwriters clashed in this case, they should ,gvrp, have considered the underwriters on the ship as entitled to the [. Rowcrofr4 freight.(2) East, 34. In case of detention by the same embargo, the ship and freight were abandoned to the respective sets of underwriters, who paid a total loss. After the adjustment of the loss on each interest, the embargo was taken off, and the vessel proceeded on the voyage insured, with her original cargo ; and the assured, as ,^. ,p,, agents of the underwriters on the ship, paid the expenses of the son v. Row- voyage and received the freight. Alvanley, C. J. ' We have croft, ut inquired into the circumstances of the case(*) lately decided in ^"P''- the King's Bench, upon the same subject, and find they do not materially differ from the present. Here the assured agreed to assign over all their right and interest in the policy upon the ship, after which they agreed to assign over to the underwriters on freight, all their future interest to arise on the freight. The ship having returned and earned freight, the assured received the whole ; and the question now is, whether the underwriters on freight are not entitled to demand what the assured have re- ceived.' In compliance with the opinion of the King's Bench, it was held that the assured was liable to pay over to the under- 476 Total Loss and Abandonment. Chap. XVll* (1) Leatham r. Terry, 3 B, & P. 479. Russian em- bargo cases. C2) M'Arthy r. Abel, 5 East, 388. (3) Kcr V. Osborne 9 Kaat, 378. writers on freight, the amount of freight earned. But the Chief Justice ^aid, 'Though the case has been argued as if it were a question between the two sets of underwriters, we desire to be understood as not giving an opinion upon such a case.'(l) In case of detention bj the same embargo, the ship and freight were severally abandoned to the respective underwriters upon each, at the same time, on the 1 1th of January, 1801. The ship had gone out from England under a charterparty, to bring back a cargo of masts, &:c. to England, and the cargo had been taken on board at Riga, when the embargo was laid. The em- bargo being taken off, the ship was released on the 30th of May, and subsequently brought a cargo to England, in pursu- ance of the original charterparty. The insurers on the ship had paid a total loss in February, when the assured assigned to two persons, in behalf of the underwriters on the ship, all their ' interest, property, claim, and demand, of, in, to, or out of, the ship and her appurtenances.' The agent of the underwriters on the ship had advanced money for the expenses of repairs done upon the ship at Riga, and to pay the seamen's wages and other expenses, on the arrival of the ship in England. He had also received the freight, and a question was submitted to the court, whether he had a right to retain it ; or was liable to pay it over to the assured, in whose names the action was brought to re- cover the freight, but on behalf of the underwriters on the freight, as far as it had been insured and abandoned. Lord Ellenborough,C. J. ' The question in this case seems to resolve itself into a single point: viz. whether the freight has been lost, or not ? If the freight, in the events which have hap- pened, has not been lost, no loss can be demandable against the underwriters on freight. If it has been lost, it has become so, not by means of the perils insured against, but by means of the abandonment of the ship; which abandonment was the act of the assured themselves, with which the underwriters on freight have no concern.' The decision accordingly did not settle the point which had been most laboured in the argument, namely, the effect of the abandonment of the ship upon the pending freight. But the judges intimated, in the course of the argument, that the abandonment of the ship included the pending freight. (2) Another similar case was brought before the same court ; but it turned upon a collateral point, and the main question which the parties had in view — the effect of the abandonment of the ship upon the pending freight — remained undecided.(3) Another ship delaincd by that embargo, was a general seeking, and not a chartered ship, which having taken on board a greater part of her cargo at Cronstadt, and when the rest was coming down from St. Petersburg in lighters, was seized and detained on the 15th of Noveml)er, 1 300. The ship had been insured for the outward and homeward voyage, and the freight for the homeward voyage. An al^andonmeiiL was made in February lo boili sets of underwi'itcrs, who ])aid a total loss of the shij) and freight, as far as the interests were covered by the jiolicics. Sect. 17. Effect of the Abandonment of the Ship, S^c. 477 The embargo being taken off in May, the captain reloaded a Russian em- greater part of the cargo which had been on board in Novcm- bargo cases ber, but taken out and ware-housed during the winter; and he remained at Cronstadt until the third day oi" July to complete his cargo ; when the ship sailed, and she afterwards arrived safe at Liverpool, and earned freight. The captain had given bills of lading to the several shippers in November, but in the spring he gave new bills of lading for that part of the cargo which had been shipped in the autumn, and was again taken on board in May. Lord EUenborough said, ' He felt great difficulty in saying, that after an abandonment of the ship, the owner could abandon the freight, which seemed to follov/ the property in the ship, being the earnings made by the subsequent use of that which was then become the property of others. If it had been a chartered ship he should have known better hoAV to deal with the difficulty ; but in the case of a seeking ship, as this was, he did not well know how to separate the character of owner of the ship from that of freight, where the freight was to be earned on each parcel of the goods shipped and brought home.' But the judges gave no deliberate opinion upon this point, which was w) j^l^"^^ ^^ not made a part of the case presented to the court.(l) East 24. ' Thus after all these cases, in which the question of the effect of the abandonment of the ship, in respect to freight, was ela- borately and repeatedly argued, the question remained unde- cided. But a judgment has since been given upon it, both in the court of King's Bench and that of the Exchequer Chamber. In case of capture in the course of a voyage from Rio Janeiro in England to Liverpool, the ship and freight were abandoned to the re- the abandon- spective underwriters on each, and the abandonment of each '^^"^- °{, ^]\^ interest was accepted, and a total loss was adjusted and paid tomdudethe upon the ship, and subsequently a total loss was also adjusted pending and paid upon the freight. The ship and cargo were recaptur- freight. ed and brought into London, and were restored to the owners, on the payment of salvage. The freight was earned by the de- livery of the cargo at the port of destination, and was received by the assured for the use of the parties — whether underwriters on the ship or the freight — who should establish their claim to it. The court of King's Bench were of opinion, that the aban- donment of the ship transferred to the underwriters on the ship, the whole freight pending at the time of capture, and subse- quently earned. Mr. Justice Bayley, however, dissented. He thought that the abandonment of freight transferred to the in- \J, -J^^^ ' - surer of that mterest the right of receivmg the ireight.(2) m. & S. 79, The same case was brought before the court of Exchequer Chamber, where Chief Justice Dallas, giving the opinion of the court, said, ' It is not denied that, generally speaking, an assign- ment of the ship includes freight, but it is said that it does so because such is the natural effect of such assignment, where there is no agreement between the parties to the contrary ; whereas, in cases of abandonment, such agreement is to be im- plied from the practice of making separate insurances, which 478 Total Loss and jibandonmcnt. Chap. XVII. the law permits ; and that the law will therefore keep the in- terests of the parties separate, giving the freight to the under- writer on freight abandoned.' ' That such a practice has prevailed is true, but there is a fallacy in confounding the fact of that practice with the legal effect of a contract of insurance. Such a practice, if of suffi- cient prevalence and notoriety to raise a presumption of general knowledge, would show the understanding of the parties, with re- ference to which they must be taken to deal, and therefore would form the basis of a contract between those who were re- spectively privy to it. But it was admitted that there had been no such settled practice ; the underwriters on the ship having, in every instance, resisted the claim of the underwriters on freight, asserting that the freight belonged to themselves, as own- ers of the ship, on the abandonment being made.' ' There being then no actual or implied agreement between the two sets of underwriters, what is the legal operation of their respective contracts ? In resolving this question, I put no stress upon the fact, that freight passes under a general assignment of the ship; because that appears to me to be begging the ques- tion — the question arising on the distinction, existing in cases of abandonment, as being difterent from common transfer by the ordinary modes.' 'The case seems to me to result to this: in every other case of transfer the freight follows the assignment of the ship; and if abandonment be but a different name for assignment, and the same in cfiect, unless modified to a difierent purpose, by the agreement of parties ; and if in this case, so far from there being (1) Davidson any such agreement, the contrary is to be implied, the reason Pricr542- S ^^^^^ ^^^' t^ki"g ll^e case out of the general law. Consequently C. 2 Brod.'& the underwriters on the ship, under an abandonment, are entitled Bing. 379. to the freight.'(l) In New York A ship and the freight were insured with different sets of un- of the ir"^ dcrwriters, from Bangor in Wales, to New York. The ship bc- carries a i'\g Compelled, by stress of weather and sea-damage, to put into rateable part Rivadeo in Spain, was abandoned to the underwriters upon her, of the pend- -^^^J^Q accepted the abandonment, and paid a total loss. The ship, '"* rt^'gi- being rej^aired, afterwards performed the voyage, and earned freight. The freight was insured after the owner heard of the vessel's putting into Rivadeo. The question was made, whether the insurers, to whom the ship had been abandoned, were en- titled to the whole, or any part of the freight. Mr. Justice Radcliir said, ' 1 think the insurer on the ship can in no event gain by means of the freight. The effect of an abandonment is to substitute the insurer in the place of the as- sured. It bears no analogy to a sale. I can discover nothing to support the insurer's right to recover what he did not insure. By a(;<:ej)ling the al)andonment, the insui-ers became owners of the ship, lujt they could only take her cum onc.rc^ subject to the situation in which she was placed, and the engagements of the voyage they had insured, and to the rights of all parties con- cerned in the adventure. The ship may belong to one per- Sect. 1 7. Effect of the Abandonment of the Ship, S^c. 479 son, the freight to another, and the cargo to a third. Suppose in that case the assured on the ship to abandon, could the under- writers by any construction be entitled to the freight which originally was, and continued to be, the property of another ? Mr. Justice Kent said, ' Abandonment, if accepted, is equiva- lent to an absolute sale of the property. The insurer must con- sequently become entitled to the freight subsequently earned, for freight is incident to the ownership of the vessel, and follows it as closely as rent does the reversion. All the subsequent charges must be borne by the insurer, and as he takes the bur- then, he ought to reap the advantage. And upon principles equally strong, the insurer must be entitled to the freight earn- ing or accruing at the time of the abandonment, in like manner as if a person sell land, after the crop is sown, or assign the re- version before the rent becomes payable, the emblements in one case, and the rent in the other, will pass with the land.' ' If any portion of the freight had already become due, the same would undoubtedly remain with the assured, and not be aifected by the abandonment. But the growing freight must pass with the ship, for want of a precise and definite rule of apportionment. The case of a voyage, partly performed, is not susceptible of an accurate adjustment of a rateable freight. It is very questionable whether the owner can preserve his claim against the insurer on freight, if he abandon the ship.' Mr. Justice Benson was also of opinion that the right to the whole pending freight passed to the insurers by abandonment. Lewis, J. ' My opinion is, that the freight ought to be appor- (1) Unit. Ins. tioned, and that the insurers should recover so much as was ^°' ''• Lenox, earned subsequently to the peril that caused the abandonment.' 377. g'c, 3* Lansing, C. J. was also of this opinion.(l) Caine», 251. The same case was brought before the court of errors, a ma- /2^ S C 2 jority of whom were of opinion, with Chief Justice Lansing, and Johns. Cas. Mr. Justice Lewis, that the freight should be apportioned.(2) 443. Accordingly, in a subsequent case of abandonment of ship and freight to the respective sets of underwriters, on account of the capture of the ship after she had performed eight ninths of the voyage insured, the court said, ' According to the decision in The United Insurance Company v, Lenox, the underwriters on the freight are entitled, in virtue of the abandonment, to all the (3) Leaven- vessel's earnings, previous to her abandonment, that is to say, ^"[^^ \', eight ninths ; and those on the ship, to the remaining ninth.'(3) Caines 578. Chief Justice Kent says, ' It was determined in the United Insurance Company v. Lenox, that upon abandonment of the vessel, the owner of freight being also owner of the ship, did not thereby abandon the freight in toto, but retained a certain part , . ^ to be apportioned pro rata itincris, and therefore to be carried Hallett 3 down to the time when the loss happened.'(4) Caines, 20. In a subsequent case, it is said by the same judge, ' Whether the abandonment of the ship deprives the insurer on freight of his salvage, I need not say, though the better opinion is, that it does.' He adds, that it is a question between the respective insu- 480 Total Loss and Abandonment. Chap. XVII. (1) Living- rers of ship and freight. ' It would be an anomaly in the law, if, ston t^. Col. -when both ship and freight are insured, you cannot abandon the Ins. Lo. J , . r, , ,.o . • 1 "^ 1 1 1- ,/ V Johns. 49. 0"6 Subject without deteatmg your right on the other policy.'(l) In a suit between the tAvo sets of underwriters to determine Co. r. Unit?^' ^^^^^^ respective interests in the freight pending at the time of the Ins. Co. 9 abandonment of both subjects, the court said, ' The rule by Johns. 190. which the freight is to be apportioned, appears to be settled with See Peters v. ^g ]^y ^j^g ^^gp ^^ ^pj^g United Insurance Company v. Lenox. Co. 3 Serg. &: The principle contained in the final decision of that case, is, Rawie, 28; that the freight, prior to the loss, goes to the ship-owner, or to Simonds v. his representative, the insurer on freight, to whom it was aban- Whart.^Di"-." ^^ned ; and that the freight earned subsequent to the time of the 337. h. 1. 187. loss, goes, on abandonment, to the underwriter on the ship.'(2) In Massachu- ^1 a case of constructive total loss by sea-damage, which setts the pro compelled the ship, on a voyage from Holland to the United ra/tt freight, States, to put into England, where she was repaired, and after- the ^abandon-" ^^^^^^^ performed the voyage and earned freight, the ship having ment, goes to i" the mean time been abandoned, Mr. Justice Putnam, giving the insurers, the opinion of the court in Massachusetts, said, that as the pro- perty in the ship remained in the assured until the time of the loss, ' the freight or her earnings belong to him till that time, if he stands his own insurer for the freight ; otherwise to the in- surer on the freight.' The subsequent freight was considered to belong to the insurersv to whom the ship had been abandon- (3) Coolidge ed since, ' the ship, repaired at an expense exceeding half her r. Gloucester value, must, to all legal purposes, be considered a new ship, as 15M R much as if the insurers had procured a new keel, and wrought 341. ' ' up iron and timbers into a vessel of a different kind and form.'(3) All the preceding cases establish the doctrine — which seems to be in itself almost too obvious to need any elaborate reason- ing in support of it — that the earnings of the ship belong to the owner. No difficulty occurs in applying this doctrine, except in the case of a freight pending at the time of a total loss, and earned partly before, and partly after, the happening of the loss. An application of the doctrine to this case, evidently re- quires an apportionment of the freight pro raid, between the owners before the total loss, and the insurers, who are the own- ers after the loss has taken place. The only objection made to this application of the doctrine, is the supposed difficulty of making it ; but this objection docs not seem to be of great v/eight, since nothing is more usual tiian an allowance of pro raid freight in other cases, and the difficulty of apportioning freight is not greater than that of adjusting a general or particular average in ordinary cases. Admitting the apportionment to be practicable, of which there can be no doubt, the reasons in favour of mak- ing it arc (|uite obvious. There seems to be no reason why the underwriter, to whom the ship is abandoned, should be entitled to the advantages accruing from what she had previously done towards earning freight, 'i'he assured must abandon the ship free of incumbrance, and the insurer is not entitled to the bene- fit of a pending charterparty, or what has been done towards earning freight under it. The insurer is not entitled, in consc- Sect. 18. Amount Recoverable. 481 quence of the abandonment, to an assignment of the charter- party from the assured. If the assured tranships the goods, and completes the earning of freight, by another ship, the insurer to whom the original ship is abandoned, has no right to object. The terms of the chartcrparty may prevent this, but as the charterparty is a contract between other parties, the underwri- ters are not entitled to the benefit of its stipulations. Suppose the goods to be delivered before the freight is paid, it does not appear how the underwriters can recover the whole freight. They cannot recover it under the charterparty, to which they are strangers ; and they cannot recover it for services rendered by the use of their ship in transporting the goods, since the goods have been transported in their ship for a part, only, of the voyage. Allowing the underwriters to be freed from any legal embarrassment in recovering the freight directly from the shippers, it does not appear upon what ground they could re- cover more than the price of transporting the goods subse- quendy to the constructive total loss. Admitting that the un- derwriters have a lien on the cargo for the entire freight — which lien they cannot have as owners of the ship, in consequence of the abandonment, but they have it, if at all, as representing, and being substituted for, the assured, as a party to the charter- party — still this aflbrds no reason why they should retain the whole freight, merely because they have the means of enforc- ing the payment of it. There seems to be no satisfactory rea- son for allowing the whole freight to the underwriters, unless that alleged by the French writers is to be admitted, who con- sider the freight earned, or what has been done towards the earning of freight, to be a compensation for the diminution of the value of the ship by wear and tear, and consumption of provisions ; which principle is not applicable in England or the United States, where freight is a distinct insurable interest; and where, in case of shipwreck, and the saving of the cargo, and an allowance of freight pro rata, for the delivery of the cargo to the consignee at an intermediate port, it has never been sug- gested or imagined, that the underwriters, to whom the ship is abandoned, are entitled to such freight. This is an exclusion of the principle, that the underwriters are entitled to the freight, as a compensation for the diminution of the value of the ship. Section 18. Amount Recoverable. The assured can recover for a total loss, as such, only the value at which the subject is insured. But besides this amount, the insurers may also be liable for a partial loss on account of repairs actually made, and they may also be liable for expendi- tures in addition to a total loss. Lord EUenborough said, ' There may be cases in which, though a prior damage be followed by a total loss, the assured may, nevertheless, have claims, in respect of that prior loss, which may not be extinguished by the subsequent total loss. 61 482 Total Loss and Ahandonment. Chap. XVIL (1) Livie V. Janson, 12 East, 655. (2) Le Che- minant i\ Pearson, and Le Chemi- nant v. All- nutt, 4 Tauut. 367. (3) Lawrence V. Van Home, 1 Caines, 284. See Bordes r. Hallett, 1 Caines, 444. (4) Watson c Mar. Ins. Co. 7 Johns. 57. (5) Juinel r. Mar. Ins. Co. 7 Johns. 424. Disbursements for repairs made prior to the happening of a total loss, are of this description; unless they are more properly co- vered by that authority with which the assured is invested, of suing, labouring, &c. for the defence, safeguard, and recovery of the propcrty.'(l) Chief Justice Mansfield said he had known cases in the King's Bench, where ' such expenses had been re- covered, without any distinction, whether as an average loss, or within the permission to sue, labour,' &c.(2) In case of capture, expenses were incurred in prosecuting an appeal. Mr. Justice Radcliff, said, ' 1 am informed that it was decided by this court in 1795, that the insurer is liable for simi- lar expenses, beyond the amount of his subscription ; and 1 be- lieve that the underwriters have, in practice, uniformly ac- knowledged their liabilily.'(3) In case of insurance upon a ship captured and condemned un- der the Milan decree, very considerable charges were made by the captain for services and expenses ' about the business of the ship only,' as the captain said ; but as a great part of these expen- ses were incurred while the cargo remained on board, the court said, 'That the charges arose before the captain ceased to have charge of the cargo, and w'ere therefore incurred in labouring for the benefit of the cargo, as well as for the ship and freight. And it would seem just, that the cargo should bear its propor- tion of the expenses, until the captain ceased to have any con- cern with it ; and that the ship and freight should bear the ex- penses in due proportion throughout. But the labour and ex- pense were incurred for the recovery of the ship, notwithstand- ing that other subjects might enjoy the result. The assured was obliged to pay the charges, as owner of the ship, and he is en- titled to recover the whole in the first instance of the insurer on the ship, and to leave it to him to call upon the owners or insu- rers of the cargo and freight.' ' There is no doubt that the insurer is liable beyond the sum insured, for the expenses of labour and travel fgr, in, and about the safeguard and recovery of the property insured. The clause ought to be confined to expenditures arising directly from a pro- secution of the direct objects for which it was introduced.' Ac- cordingly, where the assured on the ship had agreed to make the captain the extra allowance of ' one dollar per day for each day he remained in port,' for discharging the cargo, procuring freight, and attending to the interests of the ow^ner, it was held that this charge could not be recovered against the underwriters in addition to a total loss, on account of the captain's remaining, after a capture, to look after the projierty. The court said, the assured might have allowed the cajitain twenty dollars per day, but the underwriters ought not, as a matter of course, to be an- swerable for this charge, in addition to a total loss.(4) The same court said, subseciuently, ' According to the settled construction of the genernl permission given in the policy, to labour, ^V:c. the insurer is lialde to ex))onses incurred in attempt- ing lo recover cuptured property, in addition to the payment of a total loss.X^) Chap. XVIII. Excepted Losses — The Memorandum. 483 A ship being abandoned on account of detention by an em- bargo, the coi-rt said, as ' the insurers Avould not accept of the abandonment, and the assured might have sold the ship; if, in- stead of selling her, or laying her up and discharging the crew, he thought proper to continue the crew in service, and under wages, he cannot make the expense a charge under a policy upon the ship. In addition to a total loss, the insurer is answer- (i) M'Bride able only for the necessary expenses incurred in labouring for ^o^'r'johns the safety and recovery of the subject insured.'(l) 433. In case of insurance upon the cargo, the ship put into the port of Copenhagen to refit, and after refitting, was detained by an embargo, on account of which the cargo was abandoned. The cargo was held to be liable to contribute in general average, for the expense of the unloading and storage of the cargo, and the wages and provisions of the crew : and the court said, (2) Barker v. £ ml 1- 1 1 • • • I Ti- X rhoen. Ins. ' 1 hese are expenses which the msurer is to pay, in addition to q^^ g Johns. a total loss.'(2) 245. In case of loss upon freight, it was held that the assured was not bound, by a custom, to' strike off one third for wages, pro- (3) M'Gregor visions, and other charges, unless he knew of the existence and pe^"^/ -whart, uniformity of the custom ;(3) that is, in a total loss of freight Dig. 388. h.t. the insurers are liable for the gross amount.(4) In case of total n. 188. loss the underwriters are always liable for the amount of the r^ii ^inJ'^Co''* insurable interest, and the gross freight is considered to be the 3 ckines, 43. amount of this interest.(5) (5) Supr. 324. CHAFl^ER XVIII. EXCEPTED LOSSES— THE MEMORANDUM. i OLiciEs of the usual form, upon the cargo, contain an excep- tion of certain losses. The exceptions relate to the amount of the losses, and also to the kind of articles insured, and were formerly in all policies, and still are in many, introduced in a note or memorandum, and hence the kinds of goods to which these exceptions relate, are called memorandum articles^ and the subject of these exceptions, as a part of the law of insurance, often passes under the name of the memorandnm. In the English policies, certain articles are ' free from average, unless general, or the ship be stranded ;' and certain others, ' free from average under 5 per cent ; and all other goods, the ship, and freight, under 3 per cent, unless general, or the ship be stranded.' All general averages are to be paid by the un- derwriters, in the same manner as if the policy did not contain this memorandum ; but they are not liable to pay any partial loss under the rates specified, unless the vessel be stranded ; 484 Excepted Losses — The Memorandum. Chap. XV 111. that is, if the vessel be stranded, they become liable to pay all particular averages to which such stranding is construed to re- late. The stranding of the vessel defeats, to a greater or less ex- tent, the exception. This gives rise to the questions — what is stranding? and to what extent does it defeat the exception ? What is In one case the jury found that ' stranding meant where the stranding. vessel took the ground and bilged, so as to be incapable of pro- (1) 7 T, R. ceeding on her voj^age ;'(l) in another, where the vessel was dri- fa^B ■ > ^^^ aground in the Thames, and remained aground an hour, it was Henkle, ' Considered not to be a stranding within the memorandum.(2) Marsh. 240. Where the vessel run upon piles, and rested until they were cut (3) Dobson v. j^^vay, it was considered to be a stranding.{S) But in case of a j^^ ' ' vessel's touching upon a rock, and resting only a minute and a (4) M'Dou- half, it was held not to be a stranding{4) Where the vessel, gie V. Royal being fastened by a rope to the pier of the dock, took the 4M &S 503- S^'o^'^^? ^^ ^v^s considered to be a stranding within the meaning 1 starkie, ' of the policy.(5) And Lord Kenyon was of opinion, that a vo- 130; 4 Camp, luntary stranding of the vessel bond Jide, was a stranding within ^^"^^ the meaning of the memorandum. (6) How far Upon the question, whether the stranding defeats the excep- strandingde- tion in regard only to losses occasioned thereby, or to other cTWn^ ^^' ^^^^^^ ^^ ^^'^^'^ ^^ those, the English reports supply some elabo- rc:.\^u^^ ryte cases. (a) By some of the earlier of these cases, it seems (^5; Inompson , t -ii i r i • i • i i V. Whitmore, that strandmg will cleieat the exception, only m regard to the 3 Taunt. 227. losses occasioned thereby, or, at least, to those only which can- (6) Bownng ^q^ \^q distinctly traced to some other cause. But, in a subse- T. R. 212.' n. quent case, the judges were of opinion that the provision in re- lation to stranding, was in the nature of a condition, on the hap- (7) Burnett pening of which, the Avhole memorandum was defeated, and the Vt'^r'^Mo"' underwriters thereby became liable for losses on the memoran- 1 Esp. 416. ' dum articles, in the same manner as for losses on any others. (7) It is not distinctly decided, that, if a vessel be stranded in one part of the voyage, and in a subsequent part of the voyage, without any connexion whatever with the stranding, a loss takes place on the memorandum articles, the insurer is liable for such loss; but the opinion of the judges seems to be, that in such case the insurers are liable. The doctrine adopted, appears to be, that after a stranding, the construction of the policy is the same in regard to all losses, as if it did not contain the memo- randum. But the decisions upon this point arc of the less importance, (8)7T. R. since the two English insurance companies, a long time ago, Av p 4*^ t" ^'^''uck the provison, in relation to stranding, out of their poli- l.p. 208. * cics;(8) and in lh(^ United States, the foi'ms of policies in com- mon use in New York, and the ports to the south of that place, contain no provision on the subject of stranding. By the com- mon forms of policies used in Boston, and many of the other ports to the north of New York, the insurers are liable for par- («) Wilson V. Smith, 'A Bnrr. 1550; Ciintillon v. Lond. Ass. Co. 3 liurr. 165:3 ; Ncsbilt v. Lushhiglon, 4 T. 11. 783. Chap. XVIII. Excepted Losses — The Memorandtirn, 485 ticular average on the memorandum articles, in case of strand- ing ; but the policy expressly limits their liability to the losses occasioned by the stranding. The policies of private under- writers in London retain this provision in its old form. In Great Britain and the United States the insurers are, in Policies of the the common form of the policy, generally, and I believe with- common form out exception, liable for general averages of however small ception'oV^ amount.(a) general ave- Policies generally contain a provision, in the form of a me- rage. morandum or otherwise, that the underwriters are not to be liable for any particular average, whether on ship or freight, ^n particular or any article of merchandise, other than those enumerated in average under the memorandum, unless it amounts to a certain rate per cent, five per cent. By the English policies, this exception is fixed at three per cent,(6) in the American policies it is fixed at five per cent. The forms of policies in common use, whether in the United ^^<=ep<^'°ii °^ c • T-i 1 1 1 ■ p -1^ ■ average, btates, m Lngland, or on the continent oi Europe, contain an enumeration of articles on which the underwriters are not lia- ble for particular average. But there is very considerable di- versity in these enumerations. In a form of policy at present used by an insurance company of Paris, this exception extends to salt, fruits, unwashed wool, glass-ware, porcelain, and all articles subject to breakage or rust. In English policies the same exception extends to corn, fish, salt, fruit, flour, and seed ; and in some policies to hides, and tobacco. In the common forms of policies used in Boston, this excep- Average ex- lion extends to salt, fish, fruit, grain,(c) hemp, hides, and skins ; Boston"'" and in some forms formerly used, the article of Jlax was added to this list. This exception is applied to a more numerous list of articles Average ex- in New York. The common policies of that place exempt the ^f^^*^^ y T insurers from particular average on salt, dry fish, fruits, v, hcther preserved or otherwise, grain, hempen yarn, hides and skins, bar and sheet iron, iron wire, tin plates, tobacco, Indian meal, cheese, vegetables and roots, cotton bagging, pleasure carriages, household furniture, musical instruments, and looking glasses. The articles usually insured free of average in Philadelphia, Average^ex- are, salt, dried fish stOAved in bulk, Avheat, Indian corn, and Philadelphia, grain of any kind, malt and bread stowed in bulk, and leaf tobacco ; or, in some policies, tobacco in casks. There appears to have been a greater diversity in the forms Average ex- of policies used in Baltimore, than in those of either of the i^^^P*^""^ ,1^ . , : , . ^ haltnnore. other places above-mentioned, m respect to the exception or ave- rage. In the different forms of policies used there, the articles (a) By the form of the policy at present used by the Royal Insu- rance Company at Paris, the insurers are not liable to pay general averages that do not exceed three per cent. (6) The Paris policy above-mentioned contains the same excep- tion. (c) The meaning of gram in the American policies is equivalent to that of corn in the English. 486 Excepted Losses — The Memorandum. Chap. XVIII. Average ex- cepted — ill Charleston and Savan- nah. Exception of average un- der a certain rate on parti- cular articles. insured free of average are, salt, dried fish, or, in some poli- cies, dried fish stowed in bulk, fruit, peas, seed, Indian corn, and, in most cases, Indian meal ; wheat, and all kinds of grain, ■with the exception of rice in some policies ; hides, with the ad- dition of pelts in some policies, and of skins and furs in others ; malt, bread, cocoa, and coffee stowed in bulk ; tobacco, or, in some policies, tobacco in casks; and liquids, or liquids in casks, but this kind of articles is om.ittcd in some policies. In a form of policy used at Charleston, the articles within this exception are salt, dry fish, fruits, grains of all kinds, In- dian meal, flour, coffee in bulk, cheese, bacon, vegetables, and roots ; and in one used at Savannah they are the same, with the omission of flour, and addition of cotton bagging and ozna- burgs. All these policies, both English and American, exempt the in- surers from particular average on all other articles perishable, or, as it is expressed in some policies, esteemed perishable, in their nature. Besides the entire exclusion of partial loss on certain articles, the insurers are generally exempted from partial losses under a certain rate per cent on other articles. In the London policies insurance is made free of average under five per cent on su- gar, skins, hemp, and flax ; and in some policies, rum ; and tobacco, and hides, in policies in which these articles are not free of average. The policies made at Lloyd's differ in this respect, as well as in respect of stranding, from those of the in- surance companies. In Boston the insurfers are not liable for a partial loss under seven per cent on sugar, flaxseed, bread, tobacco, and rice. In New York they are not liable for partial loss under twenty per cent upon hemp ; or, under ten per cent upon coffee or pepper in bags or in bulk ; or under seven per cent upon sugar, flaxseed, or bread. In Baltimore they are exempted from partial losses under ten per cent upon coffee in bags, and, in some policies, a similar exception is extended to cocoa in bags. In the policy of one of the insurance compa- nies of Charleston, particular average under seven per cent, is excepted on sugar, coffee, cocoa, hemp, flax, flaxseed, bread, skins, hides, and tobacco; and under ten percent on the fol- lowing articles, in bags, namely, coffee, cocoa, pimento, and all other East and West India articles. The Philadelphia policies do not contain anj- exception of particular averages under a certain rate, besides the general exception of those under five per cent. This account of the excej:)tions of losses in the common forms of policies, does not probably include all the forms of the memorandum, used by each public insurance company, or in each insurance broker's olfice, in the places mentioned ; nor is it imjiortant that it should include them all ; since, although it should be minutely accurate in respect of the policies now in use, it might soon cease to 1)0 so in respect of those to come in- to use hereafter. It catuiol be a safe practical guide in eflectiiig insurance, nor is it intended or needed as such ; it is given, for Chap. XVIII. Excepted Losses — The Memorandum, 487 the purpose of showing what kind of articles are, in general, considered to be perishable in their nature, or very liable to average from usual and ordinary accidents. The directing of the attention of the assured to the kinds of articles enumerated in the memorandum, may be useful, since persons may perhaps in some instances inadvertently effect insurance upon articles free of average, without^ considering that such a policy, ex- cept during a war when there is great risk of capture, affords but a very imperfect indemnity, and one that is hardly worth stipulating for ; as the risk of what is construed to be a total loss, under this exception, is very small. Under the exception of all partial losses, it has been held in What articles England that malt,(l) peas, and beans, come within the descrip- arecompre- tion of corn,{2) but that rice does not ;(3) and that saltpetre is nfe"nioran" ^ not included in the term salL{4) In New York it has been dum. held that the exception of all partial losses on roots, docs not /,n ,^ discharge the insurers from S partial loss on sarsaparilla, though Suriid°e 2 a root ; it not being considered a perishable article, to which the Esp. 633. reason of the exception makes it applicable -,(5) but it had been (2) Mason v. before held that deerskins, were comprehended under the ex- MarstT^sse ception of sJcins, although it was urged that they did not come (3) Scott v' within the reason of the exception.(6) It Avas held by the Bouidiiion, 2 same court that the specification of one species of an article, f:J\' ~^'^' excluded the other species of the same article, from the excep- Bourdiei" tion of 'articles perishable in their own nature;' dry fish being Park, 113; specified as an article, free of particular average, excluded ^^arsh. 224. n. other kinds, as pickled fish, from the exception. (7) rp, 1 he- exception 01 particular average excludes a constructive tionofave- total loss on account of damage to the article. Accordingly, rage applies the right of abandonment, on account of damage exceeding |odama.g:eto half of the value, does not apply to those articles. As long as they continue to be of any value, the underwriters are not lia- ^^, j '* ^^ ble for a total loss ; and from most of the cases it seems, that 7 johns. 385*. although they are so damaged, as to be rendered absolutely of (6) Bake-well no value, still if they remain in specie, if they so subsist that ^ ^'^^^- I"^- they may still be properly designated by the same name, the q^'^^ 246^"^* underwriters are not liable for a total loss. p^^^ ^ Where peas were so much damaged, that on arrival they ed, and not were not worth more than about one quarter of the amount of worth more the freight, it was held not to be a total loss, and it was stated P^^"iV^';'^,'" by witnesses to be the general understanding among insurers, ^ * that if the goods, on arrival, were found to be of no value, it Ludlow 2^ ^' was still a particular average, and so the insurers were not Johns. Cas. liable.(8) 289. Lord Mansfield was of the same opinion, in regard to a cargo Fish spoiled. of fish which was absolutely spoiled, which yet arrived, and (8) Mason v. still existed in specie, so that it might be properly called Jish.{a) ^kurray, Lord Kenyon said it had been uniformly held, that in order p .j! lof ^ "' to render the insurers liable under this exception, on account of ' (a) Cocking v. Fraser, Marsh. 227 ; Park, 181. The rule seems to be the same in France. Poth. des Cent. Mar. n. 59, Cushing's Translation; Emer. torn. 2. p. 184. 488 Excepted Losses — The Memorandum. Chap. XVI 1 1. Corn spoiled by sea-da- mage. (1) M' An- drews V. Vaughan, Park, 114; Marsh. 232. (2) Neilsoa V. Col. Ins. Co. 3 Caines, 108. (3) Saltus V. Ocean Ins. Co. 14 Johns. 138. (4) Anderson V. Roy. Ex. Ass. Co. 7 East, 38. (5) Davy r. Milford, 15 East, 559. Sugar mostly ■washed out of the hogs- heads. (*) Uavy V. Milford, lit Supr. (6) lledbcrg V. Pearson, 1 Holt, 349 ; 2 Marsh. 432 ; 7 Taunt. 154. See al- so Glennie v. Loud. Ass. Co. 2 M. & S. 371. (7) Marrar- di«T r. (Jhcs. IllM. Co. )! Cranch, 39. the degree of damage merely, ' the cargo must be wholly and entirely destroyed.'(l) In New York the jury were told, in regard to a loss upon corn that was so much damaged as to have become putrid, that if it was so damaged by the perils insured against as to be ' of no value as nutriment for man,' the insurers were liable for a total loss ; but this opinion was overruled by the court, who decided that ' so long as the corn physically existed, there could not be a total loss' on account of the damage merely ; although it was ' good for nothing ; the insurers were not liable.'(2) In a case of a vessel's putting into an intermediate port, where a part of the corn Avas found to be putrid in consequence of sea-damage, and the remainder was not worth carrying on ; it was held to be only an average.(3) In case of insurance upon wheat from Waterford to Liver- pool, the vessel, in going down the river from Waterford, struck upon a rock which occasioned her to fill, and she was run aground to prevent her sinking. The hull of the ship was en- tirely under water at high water. The wheat was taken out at different times, and in the course of about four weeks it was landed, and two thirds of it was kiln-dried at Waterford. Some part of the remainder was sold for a mere trifle, and the rest was thrown away as of no value. Lord Ellenborough intimat- ed that the assured might have abandoned while the cargo was under water, and before any part of it had been recovered and kiln-dried.(4) Subsequently the same judge said, ' In this case the assured might have abandoned while the corn remained un- der water ; but they laboured to get it up and preserve it ; and when they afterwards did abandon, upon finding it did not an- swer to them, it was too late.' But the destruction of a part of a cargo of flax by shipwreck was held to be a total loss of such part.(5) Insurance being made upon fifty-four hogsheads of sugar, from Gothenburg to Stralsund, free of average, the cargo was so much damaged by sea-water, that the small quantities re- maining in the several hogsheads, did not amount to more than one hogshead. Gibbs, C. J. 'I am inclined to think it an average loss. If any of the hogsheads had been entirely lost, it would have been a total loss as to them.' Speaking of the case of a total destruction of a part of a cargo of flax in- sured under this exception,(*) the Chief Justice said, the sub- ject was there capable of division ; but ' here every hogshead contained some portion of sugar ; and I cannot distinguish be- tween a small ])art and a large part being saved.' A special jury were decidedly of opinion that it w^as an average. (6) Mr. Justice Story, in giving the opinion of the court, in one case, said, 'Nothing short of a total extinction, either physical or in value, of memorandum articles, will entitle the assurf'd to turn the case into a total loss, where the voyage is capiiMc of being jiorformed. And pcrlia))s, even as to an ex- tinction in vahie, where the connnodity s[)ecifically remains, it might yet be deemed not (|uitc settled, whether, under like cir- cumstances,!! would authorize an abandonn^ent for a total loss.'(7) Chap. XVI II. Excepted Losses — llie Memorandum. . 489 In regard to the change in a thing by which it no longer re- The article mains in specie^ it was held in New York that a chariot, insured so damaged free of average, did not specifically remain, after the loss of ^^ "eniain'7'^ the box ; for if the box should be replaced, Mr. Justice Ben- specie, son said, ' It could not, with propriety, be said that the chariot was repaired ; it would be a new chariot.'(l) (0 Ju Camp^^' ^^^ shipwreck of the vessel did not constitute a total loss on 626. ~ ' tohcat, where another vessel could have been obtained. (2) In case of insurance upon sugar and tobacco, free from ave- rage, on a voyage from Heligoland to London, the vessel was wrecked at Heligoland after the risk had commenced. The goods were however saved, but in a very damaged state. Lord Ellenborough said, 'If this can be converted into a total loss by an abandonment, the clause excepting underwriters from par- ticular average, may as well be struck out of the policy. We can only look at the time when the goods were landed, and then it was not a total loss, however unpi'ofitable they might after- wards be.' Bayley J. ' The very object of the exception is to (3) Thomp- |-j.^g j^j-^g underwriters from liability for damaged goods. They Ex. Ass. Co. say, in effect, that they will be liable if the goods are wholly 16 East, 214. lost, but not if they are only damaged. '(3) It is not said in this case that any other ship could have been procured to carry on the cargo ; but the case proceeds upon the supposition, no doubt, that another vessel might have been procured, or that the cargo (4)Moreanr. '^^'^s '•Oo much damaged to be reshippcd, aljhough it remained U. S. Ins. Co. in specie, and accordingly that the means of sending it on by 1 Wheat. 219. another vessel were of no importance. A total loss ^Jr. Justice Washington, in giving the opinion of the court iromot er ^jpon this subiect, said, 'If the question turns upon the totality cause than T i i J ' i • , i ^ i • • ,■ i • damage to the oi the loss, unconnected With the deterioration or the cargo in articles, is the value, or reduction in quantity, there is no difference in memo- same on randum, and other articles.'(4) And the court was accordingly memorandum ^ . . , , , ^ ' , , , , i- articles and o* opinion, that whcre the vessel was wrecked at the port ot others. destination, but a part of the corji was saved and landed, it was an average loss. The same pi-inciple has been expressed in (5) 6 Mass. R. Massachusetts by Chief Justice Parsons, who said, speaking in 119. and see i-cferencc to capture and arrest, ' A cargo of fish may as well be Jones 6 Mass. abandoned by a loss of the voyage, as a cargo of any other de- R. 318. sci'iption ((5) and the same doctrine is adopted in New York. (6) Whatcircum- '-I he question respecting a total loss of ai'licles insured against stances con- total loss oiily, has been particularly considered in Massachu- stitute a setts. insurance was made upon one half of a vessel, her hreakmj' up i r • i . t • i i 11 r of the voyaije cargo and Ircight, 'against total loss only,' on a voyage Irom ill respect to Grenada to Wiscassct. A 1000 dollars was insured upon the articles insu- vcsscl, whicli was A'alucd in the policy at 4000 dollars, and totariobsoniy ^'^'^ ^""^ ^^ "''^^ dollars was insured u])on the cargo, and the same sum upon the freight. The vessel went ashore at I5ermu- (p }-''^ ^^°y das, and was so damaged as not to be worth repairing. The re- neur 1 Johns, pairs would havc cost 1500 dollars, and the master had not Cast. 226 ; funds to that amount. He accordingly sold the vessel and cargo, Magi,'rath r. the net proceeds of which, after deducting the salvage and other Churrl. 1 cxprrisos, amounted to about 400 dollars. Mr. .Justice Sewall, l,. .^ f:(, plain rate ])er cent, a question occurs respecting the to \)C com- , • , ,' . ' . ' . , 1 , ,! . puteii. amount upon winch the estimation is to be made. Ii insurance is made uj)on sugar and cocoa, free of average under ten per Chap. XVIII. Excepted Losses — The Memorandum. 495 cent, and coffee and rice, free of average under seven per cent, with the general exception of losses under five per cent, a (jucs- lion occurs, whether the insurers are liable for a loss upon the sugar exceeding ten per cent of the value of that article, or only in case of its exceeding ten per cent on the value of the sugar and cocoa, and all other articles at risk, subject to the same ex- ception. Another question arises, whether a loss must not only amount to the specified rate per cent of the value of the article or class of articles, upon which it takes place ; but must also amount to five per cent of the value of all the goods at risk un- der the policy. The form of the policy may exclude this (jues- lion, by providing, as is done in some policies, that a pai-ticular average, to be payable, ' must amount to five per cent upon the (i) a Charles- whole interest at risk •,\l) or the value ' thereby insured ;' or by ton form, containing the general provision, that a loss shall not be paid, un- (^) J^^^ less it amount to five per cent, without making any distinction jj^J^^in^ore as to the articles to which this exception applies.(2) This form forms. of the exception makes it requisite that the average, whether it happen upon a memorandum article or any other, should amount to five per cent of the value of all the goods at risk. But in the form of the policy most extensively used, this gene- ral exception is not expressed as in the policies above-mention- ed. The memorandum of English policies, and those used in Boston and Philadelphia, provide, that certain articles shall be free of average, or free of average under a certain rate ; and it is added, that ' all other goods,' or else, ' all other goods, the ship and freight,' shall be free of average under three or five per cent. This form of expression gives occasion to the ques- tion, whether the exception is to be applied to the value of all the goods at risk, or only that of the goods subject to the ex- ception. A case occurred in Boston in 1809, under a policy upon su- gar free of average under seven per cent, and upon coffee and pepper, neither of which was enumerated in the memorandum, and both of which were accordingly free of average under the general exception of five per cent. A loss happened upon the cofiee exceeding five per cent of the value of that article ; but not amounting to five per cent of the value of the goods at risl-; under the policy. It was settled, by referees, that the assured was entitled to recover for this loss. The referees said, ' By the policy the cargo is divided into two classes or masses of pro- perty, upon one of which the underwriter is exempted from loss under seven per cent, upon the other, from loss under five per cent. A partial loss that happens to the articles composing one of said classes, is to be computed on the value of such class, in the same manner as if the insurance on one class was effected in one policy, and the insurance on the other class, in another policy.' The practice in Boston, and the neighbouring ])orts, has since been governed by this award. The principle upon which each exception is applied must be the same, or at least the different exceptions must not be ap- plied upon principles that are inconsistent with each other. 496 Excepted Losses — The Memorandum. Chap. XVIII. The exception of average under'seven per cent on sugar, should not be applied exclusively to the value of the sugar at risk, while the exception of average under five per cent on pepper, in virtue of the general clause relating to ' all other goods,' is applied to the value of the pepper, coffee, sugar, and all other articles at risk. Unless the policy makes some distinction in this respect, the different exceptions ought, it seems, to be ap- plied in the same manner, or according to the same general rule. Every article at risk is subject to some exception, which must be estimated upon the value of the article itself, or upon the value of all the articles at risk, subject to the same excep- tion, or upon the value of all the goods at risk. The general exception of losses under five per cent on ' all other goods,' can- not conveniently be estimated upon the value of the particular kind of articles at risk on which the damage happens, since this raises the difficulty of determining what articles are of the same kind. Suppose the invoice to consist of nails, bar iron, and iron nail-plates ; and an average to take place upon the nails. A doubt would occur whether all these articles are of the same class, and whether the estimation is to be made upon the value of the nails only, or upon that of all three, or of any two of the articles. This difficulty would occur in innumerable instances, and there would be no principle upon which it could be removed. The estimation of the general exception, there- fore, upon the value of the same kind of article at risk, seems to be impracticable and out of the question. A choice must then be made between the value of each class to which the dif- ferent exceptions apply, and that of all the goods at risk. The rule of estimating the exception upon the value of the several articles at risk, subject to the same exception, was considered by the arbitrators, in the above case, as being more uniform in jirinciplc, and more consistent with the object in view, in intro- ducing the exceptions, than an estimation upon the value of all the goods at risk would be. As the parties had classed certain articles together in the several exceptions, and made each class subject to the same exception, the construction in respect to the articles belonging to each class, should be the same, in relation to the exception, as if but one article had been at risk under the exception, equal in value to the several arti- cles. Upon these grounds the award was made, and the rule adopted by it has since been adhered to in Boston, and the neighbouring ports. Hut Mr. Stevens states a different rule as being adopted at I^loyd's. He says, ' If several articles be insm-ed together, fi-ee of average under live per cent, and average be claimed on ihe whole, the claim should be analysed to fnul if each be damag- ed five per cent, e. g. if a claim be made of 100/. i. e. ten per (1) Essay nri cent, on flax and hemp valued at 1000/. ; unless [the average on] Av. I'urtiv. f.^^\^ of (horn separately amount to five per cent, the claim can ^' '^' ' 1)0 snl)st:»iili;iled on only one of them."(l) 1 have not iisrcrtnincd \\\\\\\. is [Aw. |)i';ictice in ihis respect in other parts of the United Stales, but from what 1 have learned. Chap. XIX. Preliminary Proof. 497 that has an indirect relation to this subject, I should infer that the rule stated by Mr. Stevens, is more generally adopted in respect to the articles specifically enumerated in the memoran- dum. The different manner of introducing the general excep- tion of all losses under five per cent, in some policies, which has been noticed above, would evidently in part, take a case out of the rule adopted in Boston. A question occurs, whether the expenses of surveys, certifi- Whether the Gates, protests, and of the adjustment of the loss are to be in- expenses of eluded in determining whether a loss comes within any exception, ascertaining By the ordinance of Hamburg, ' the insurer is obliged to pay a the losrare particular average if the same amount to three per cent after lobe in- the commission of the despacheur of averages is deducted.'(l) eluded. This is adopting the rule, that the charges for ascertaining the amount of the loss should fall upon the party who must have (^^\ -pj^ ^^j^ sustained the loss, had its amount been ascertained without any art. 11. 2 expense. This rule seems to be perfectly reasonable and to Mag. 238. be founded upon the plainest principles, and it applies with equal propriety to all the expenses incurred for the purpose of y^ r^,^^^^" ascertaining and proving the loss ; that is, to surveys, protests, Av. Part IV. and the like.(2) a. 3. p. 216. Mr. Stevens says he has been informed, that the ' intention of the memorandum, when first inserted, was, that the five or three (?) Steven's per cent, should, in all cases, be deducted from the average, the parUV?a.^3. underwriters paying the balance.'(3) But the practice in Eng- p. 213. n. land is, to consider the underwriters liable for the whole of the ^ loss where it exceeds the rate at which the exception is fixed. The practice is the same in Boston, and other places in the United States, as far as I have been informed in this respect ; unless the policy contains a provision that the insurer ' will pay /-^n » c 11 c ^ I 1 1- • 1 •/ X T 1 *^ (4) A Savan- only the excess 01 damage above the rates limited. (4) 1 have, nah form. however, met with only one instance of such a provision. CHAPTER XIX. PRELIMINARY PROOF. It is a pretty general practice to allow some time, more or less, according to the law or usage of the particular place, from eight, to thirty, or sixty days, between the time of the claim and /^x j ^ proof of a loss, and the payment of it.(5) The English marine 09. c. 76.^' policies, however, contain no provision on this subject. The policies made in England against fire, in some instances at least, contain a provision in regard to the proof, on the production of 63 498 Preliminary Proof. Chap. XIX. (1) Routlidge t'. Burrcll, 1 H. Bl. 254. (2) Barker v. PJioen. Ins. Co. 8 Johns. 237, What is suffi- cient prelimi- nary proof. (3) 8 Johns. 307, Anthon's Cas. N. P. 16. n. (4) Talcott V. IVIar.Ins. Co. 2 Johns. 130. If the insurers demand a document, this may im- pose the obli- gation of pro- ducing it. which the loss shall be paid.(l) The American marine policies, universally contain a provision, that a loss shall be paid in thirty, or sixty, or ninety days, or some other time, after proof of the loss. The time agreed upon in most policies is sixty days. The evidence of the loss under this provision of the policy is called preliminary proof The abandonment, and the furnishing the preliminary proof, are distinct acts, and must not be confounded. (2) We have already seen what constitutes an abandonment, and that it is made only in case of total loss, but preliminary proof is requi- site in every description of loss. In regard to the kind of proof requisite under this provision, Chief Justice Thompson said, in giving the opinion of the court, that it ' requires only reasonable information to be given to the underwriters, so that they may be able to form some estimate of their rights before they are obliged to pay. This clause has always been liberally expounded, and is construed to require only the best evidence of the fact which the party possesses at the time.'(«) The ordinary proofs of a loss are the invoice, bill of lading, &c. to show the interest of the assured ; the survey of the ves- sel or cargo, protests, consular certificates, letters of the captain or other correspondents, &c. to show that a loss has taken place. (3) Where the captain had been made prisoner, and the assured, being informed of the loss by the pilot, communicated his information to the underwriters ; Chief Justice Parsons said, in giving the opinion of the court, ' The evidence of the loss was sufficient. Nothing can be objected but the want of affida- vit, which it is not usual to send. The master was a prisoner, and could make no protest, which is the usual evidence. '(6) Letters from the master or other person, giving an account of a loss, have been held to be sufficient preliminary proof,(c) as also the protest of the master and mate.(4) It depends upon the provisions of the policy, and also in some degree, upon the demand made by the insurers, whether the production of any particular documents is necessary. Where it was agreed, that the insurers should not be liable for a loss on a vessel insured, if, upon a regular survey, she should be con- demned on account of being unsound or ro'ten; on a claim be- ing made for a loss, the insurers required the production of a survey which had been made upon the vessel. The assured did not produce the survey. The court said, ' W^e are of opi- nion, that the assured was bound to produce the survey, or give some account of its non-production, it is possible the survey might have shown that the vessel was unable to prosecute her voyage on account of her being unsound or rotten. It was a {(i) T/iwronce v. Ocean Ins. Co. 1 1 Johns. 250. See also Barker V. I'hcnn. Ins. Co. 8 Johns. 2;i7 ; Talcott v. Mar. Ins. Co. 2 Johns. I.'iO. {!)) Munson v. Now Knj^. Mar. Ins. Co. 4 Mass. Rep. 88. iScc niso Johnston v. Col. Ins. Co. 7 Jol)ns. .315. (r) Craisf r. Un. Ins. Co. G Johns. 220; Barker v. Pljocn. Ins. Co. 8 Johns. 237. Chap. XIX. Preliminary Proof. 499 material document to the insurers in forming a judgment, whetlier (i) Haff v. the loss claimed was total. '(1) ^lar. ins. Co. The conduct of the insurer may amount to a waiver of his ^"'°JY^'^^p rights in respect of preliminary proof. Where the assured pro- Anthonys Cas! duced to the underwriters the heads of the master's protest, and N. P. 14. his letters, in proof of barratry, and the question made between the parties, was, whether the facts stated, amounted to barratry ; Mr. Justice Thompson, giving the opinion of the court, said, ' Under these circumstances, even admitting the documents not . to be competent preliminary proof, I should consider the under- \. go^n" '7 writers as having waived the claim to more formal proof.'(2) Johns. 229. And the protest of the captain, relating to a loss, being pro- duced to the insurers, but no proof of interest furnished, the court said, ' As the underwriter made no objection to the suffi- ciency of proof, and placed his refusal to pay, on the ground of ,y. y^^ ^ deviation, he must be deemed to have waived the proof of in- Robinson, 9 terest.'(3) Johns. 192. The thirty, or sixty days, or other time of credit for the loss, The term of must, of course, be computed from the time of the production of credit for the the proof, and not from that of abandonment. Where an aban- lo^^ commen- L J CGS IroJTi tnG donment was made on the 5th of the month, and the prelimina- time of mak- ry proof was exhibited on the 21st, the sixty days were com- ingpreiimi- puted from the 21st.(4) "^'T proof. As the loss must be total at the time of the abandonment, in (4) Barker v. order to entitle the assured to recover the value at which the qJ^q'j^^^ subject is insured ;(5) proof of the state of facts, at the time of 237. abandonment, might be considered to be a part of the prelimi- (5) Supr. 454. nary proof. But as this would very much extend the credit for the loss, in case of a constructive total loss at a great distance from the residence of the parties to the policy, and would give an indirect effect to the rules respecting preliminary proof, quite foreign to the object and principles of these rules, the construc- tion which would give the different stipulations effect, without causing them to interfere with each other, seems to be, to consi- der the proof of the state of facts, at the time of abandonment, not to be a part of the preliminary proof. Property being cap- tured, at a great distance from the parties, and abandoned, the assured has a right to recover, unless subsequent facts have de- feated his right. The proof of the capture, may, in this case, be considered to be the preliminary proof, and the fact that the property has not been released in the mean time, is only neces- sary to show that the right of abandonment had not been de- vested before the time of abandoning. Upon this construction the credit will begin to run from the time of exhibiting proof of (g) 3 Binn. the capture.(6) If, at the expiration of the term of credit com- 2B9. puting from that time, the state of facts at the time of abandon- ment is known, the loss will be payable. But it can hardly be supposed that the assured can recover for a total loss, before it is known whether the facts authorized an abandonment at the time when it was made. To hold that he could recover in this case, Avould be to set aside the doctrine which makes the right of aban- doning depend upon the existing facts. Although it has been in- 500 Mjustmcnt of a Claim for a Loss. Chap. XX. (1) 3 Biiin. ut timated that the assured may recover in this case,(l) yet this seems ^«pr- to be very questionable. The doctrine that abandonment must be authorized by the existing facts, seems to require that the right to payment of a loss, should be suspended, and the term of credit prolonged, until it appears whether the facts authorized an ^ abandonment. To hold otherwise, seems to be adopting the doc- trine, that the assured may recover for a total loss, without show- ing that he has a right to recover. CHAPTER XX. ADJUSTMENT OF A CLAIM FOR A LOSS What will be An adjustment of a loss, it seems, is, in London, usually made considered an by endorsing on the policy, ' adjusted this loss at' so much per a JUS men . q^^^^ Qp Other note to this effect, which is signed by the under- f3^ B^^n'-^^^ writer.(2) But the form of the adjustment is not n>aterial, it is .Smith 2 ^' sufficient if the underwriter has acknowledged the claim, and Johns. 98. the parties have agreed on its amount. An acceptance of an C"^) ^^'^«^i^aa abandonment is an adjustment of a loss as total,(3) and pay- & M^ln^ Co '"^'^^^ made on a claim of a total loss, being held to be equiva- 12 Mass. R. ' lent to an acceptance of an abandonment, were in effect an 246. adjustmcnt.(4) A policy contained a stipulation for a return of two per cent of the premium on arrival, and this return was demanded by the assured, and made by the underwriter, and a memorandum was made upon the policy to signify that it had been adjusted. After this the assured claimed an average loss. Gibbs, C. J. ' The return of two per cent on arrival, means, that if the ad- venture be safely terminated, and the underwriter free from all danger of loss, and discharged from all other claims, he will re- turn a portion of the premium. If any thing of risk remained it should have been communicated to the underwriter when the return premium was claimed. If the assured intended to reserve a claim, they should have stipulated for it.' And he left it to the jury, being a special one, whether all claims under the policy, ,r\ j^j3 J, had not been adjusted by the demand and payment of a return c;hri-itic-, i' of premium ; who found that the insurer was thereby discharged JJoi(,07. from his liability under the ])o1icy.(5) {<)) Nfwi.p. yYn award of arbitrators mider a submission, not in writing, OiivtTr i{ * '^vill be as binding in regard to a claim for a loss, as in other Mass. Rep. cases ; that is, the circumstance, that the suljmission is hy parol, ^'■'^- is iiiiinatiTial.(r.) Chap. XX. Jldjustmmt of a Claim for a Loss. 501 An adjustment may be made conditionally. After an adjustment Conditional and payment of a loss by a part of the underwriters upon a poli- adjustment, cy, another underwriter subscribed an endorsement on the policy, ' Adjusted thirty-three pounds per cent, on account, upon my sub- scription to this policy, until the account of the proceeds of the goods insured can be made up, when a final loss is to be paid to the same amount, as by the other underwriters.' Dallas, J. ' The undertaking of the insurer appears to be prospective, and his subsequent liability depended on the making up of the ac- count. The assured should have proved that they had made O) Gammon and rendered to him an account of the proceeds. The under- Moore 563; taking of the underwriter to pay the loss, is qualified by a con- S. C. 8 dition precedent, which has not been performed. '(1) Taunt. 119. An adjustment, when duly made, has the effect, like any other "^^^ <^ffect of settlement, arbitration, or compromise, of concluding the parties. ^" ^ •^'^^ " An adjustment being made in writing, or by award of arbitra- tors, the assured may bring an action upon it without setting forth the policy particularly, or he may bring an action upon (2) Rogers v. the policy in the same manner as if there had been no adiust- ^V^^oJ'w'^' ^ S • 1 1- • -1 r 1 1 /- • 194; Christ- raent, and give the adjustment in evidence of a loss and of its jam?, Combe amount.(2) And if there be no evidence to impeach the adjust- 2Esp. 489. ment, it will fix the rights of the parties.(a) But where, immediately after signing the adjustment, doubts arose in the minds of the insurers as to the honesty of the trans- action, and they called for other proof, the adjustment was held not to be binding.(6) This case cannot be consistent with those above cited, without supposing these doubts to have been ex- pressed, and further proof to have been demanded, before the adjustment could be considered as concluded, and while some- thing remained to be done, equivalent to the delivery of a deed after it has been executed ; for the doubts or demands of one party, after a transaction is completed, cannot make it the less binding. On an application to set aside an adjustment, the court in New An adjust- York said,' It appears that, previous to the adjustment, all the °ientcanbe facts were communicated to the underwriters. The adjustment for m^istake w- was made by the underwriters with their eyes open. An ad- fraud, justment cannot be opened, except on the ground either of fraud, (3) Dow v. or mistake, from facts not known. '(3) Smith, 1 Any agreement which one party is led to make in consequence Caints, 32. of the fraud of another, is not binding upon the party who would not have made the agreement but for the fraud. In regard to mistakes. Lord Kenyon is reported to have inti- A mistake of mated to the jury, that an adiustraent of a loss would not be i^.T;^°-f^ "°* 1 • T J J' J . . i- 1 I avoid an binding upon a party who made it under a mistake of the law, adjustment. or of facts.(4) But Lord Ellenborough afterwards, w^iih the ^n Rogers v concurrence of the other judges, expressed his dissent from this Maylor,2Esp. 489. (a) Da Costa v. Firth, 4 Bur. 1966 ; Hog v. Gouldney, Park, 193; Hewit X). Flexney, Park. 191; Shepherd v. Chewter, 1 Camp. 274; Rayner v. Hall, 4 Taunt. 662. (6) De Garron v. Galbrailh, Park, 194. See remarks upon this case. Park, 195; Marshall, 635. 502 Adjustment of a Claim for a Loss. Chap. XX. (1) Bllbie t. Lumley, 2 East, 469. A mistake of facts makes an adjustment Toid. (2) Dow V. Smith, 1 Caiues, 32. (3) Siting V. Scott, 2 Johns. 137. See also Stevens v. Lynch, 12 East, 38. (4) Steel V. Lacy, 3 Taunt. 285. (5) Faugier r. Hallfctt, 2 Johns. Cas. 233. (0) llaii^hr. J)e LaCour, 3 Cam J). 319. Opinion of Lord Kenyon, and said, ' every man must be taken to be cognizant of the law, otherwise, there is no saying to what extent the excuse of ignorance might not be carried.' And the court was accordingly of opinion, that where the insurer paid a loss with the knowledge of the facts, but without knowing that he was legally discharged from his liability under the policy upon those facts, he could not recover the money back as paid by mistake.(l) It was held in New York, that a mistake, to set aside an ad- justment, must be of ' facts not known,'(2) and that a misappre- hension of the law, would not be a ground of setting aside an adjust ment.(3) If an adjustment be made from a mistake of a fact, into which mistake one party is led by the concealment or misrepresentation of the other, or without any neglect on his own part, it will not be binding upon the party, who assented to it, in consequence of such mistake. An adjustment is set aside on this ground, very much upon the principles on which a policy is made void, by a concealment or misrepresentation. It is a general rule, that money paid in consequence of a mistake of facts, maybe recovered back ; and that a promise to pay money is not binding, if made in consequence of such a mistake, where the party promising has not fallen into the mistake by his own negligence, or is not understood, from the circumstances, or his agreement, to take the risk of the facts. (a) Thus, where the underwriters paid the loss on a vessel that was condemned for want of a sea-letter, a ground of condem- nation which exhonerated the insurers, but of which they had no knowledge at the time of paying the loss, Chief Justice Mansfield said, ' It seems to be clear that an adjustment is not binding, if it in any degree proceeds on a mistake.'(4) Where the assured had stated to the underwriter that a great- er part of the property had been savjed, and from a misappre- hension in this respect, the insurer had adjusted the loss at ninety- eight per cent ^ Mr. Justice Radcliff said,' Where one party is obliged to act on the representation of another, he is not con- cluded, if that representation be untrue. The adjustment is prima facie evidence only, and may be rebutted. '(5) Upon the same principle an adjustment upon the production of fictitious bills of lading, in proof of the interest of the as- sured, was not binding upon the undcrwriter.(G) {a) 1 T. R. 712; 4 Ball. 109; 8 Johns. 384; 3 Mass. Rep. 74; 4 Miiss. Rep. 341 ; 9 Mass. Rep. 408. Sect. 1. Where there is no Risk. 503 CHAPTER XXI. RETURN OF PREMIUM. Section 1. Where there is no Risk. It is a general rule, subject to some exceptions, that if the If the pro- thing insured has never been brought within the terms of the perty is not contract, so that the insurer might have been liable for a loss premium occasioned by the perils insured against, the premium must be must be re- returned to the assured, deducting, however, one half per cent turned, on the amount insured.(l) 'Where the risk has not been run,' (i) i Emer. says Lord Mansfield, ' whether it be owing to the fault, pleasure, ^^ '■• ^ ^^o* or will of the assured, or to any other cause, the premium shall ^li- Bermon be returned.'(2) But if the property has, for however short a v. Wood- time, been exposed to the risks insured against, and within the bridge, Doug, conditions of the policy, in such manner that the insurers might ^^c'li^o^^'" have been liable for a loss, no return of premium for insurance r. 154 . jyiar- of the property so at risk can be claimed. If the policy at- tin v. Sitweii, taches but for a single moment, says Mr. Justice Van Ness, there i Show. 156 ; I . c • fr,\ Sifikin V. can be no return 01 premmm.(3) Allnutt l M. The freight of a ship was insured ' from Cuba to ports in St. & s. 39'; Domingo, and from thence to ports in the United Kingdom.' Graves i'. The ship was let for the voyage by a charterparty, in which ^ c"^'-'"^* ^°* the charterer agreed to pay a stipulated amount of freight. She 339 ; Porbes had sailed from the island of Cuba to St. Domingo on the voy- i- Church, 3 age insured, but afterwards, and before any cargo was taken on ^^q°^v^^®* board, the ship deviated. The assured claimed a return of jg^^'e v^^' premium. Lord EUenborough said, ' Had the ship been lost Ocean Ins. while waiting to take in a cargo, the underwriters would have n Johns, been liable for the whole sum insured. The charterparty jn^c '^f created an interest on which the policy had attached, and there Alexandria v. had been an inception of the risk.'(a) He accordingly held Tucker, 3 that the assured was not entitled to a return of premium. 9i^^^'.^^^* The rule that the premium is to be returned, if the property Fletcher^ ^' is not at risk, enables the assured to defeat the contract by not Cowp. 666. putting the property at risk. But the underwriter can have no (3) Hendricks objection to the exercise of this right, since in all cases he re- !^' *^o""- '"«. .«' 1 1 r 1 ° • 11-11 Co. 8 Johns. tarns one halt per cent on the amount msured, unless it be other- 1, ggg also wise expressly stipulated in the policy.(6) Loraine v. The custom of retaining the half of one per cent is general Tomhnson, in the United States, as well as all other places where insurance ct°^fu^^if ' 1 T«r- II • /- 1 • 1 1 • 1 • fetembach v. IS practised. With the exception 01 this deduction, the premium Col. Ins. Co. must be returned if the insurer has run no risk. A sloop being 2 Caines, described in the policy as a hrig^ the policy did not attach, and J^V V^°^ Mass. Rep, (a) Moses v. Pratt, 4 Camp. 297. (6) Molloy, 1. 2. c. 7. ?. 12; 343. Marsh. 676; Loccenius, 1. 2. c. 5. n. 16; 2 Emer. 168. 504 Return of Premium. Chap. XXI. (1) lEmer. 161. (2) Robert- sou V. Unit. Ins. Co. 2 Johns. Cas. 250. (3) Wadding- ton r. Unit. Ins. Co. 17 Johns. 23. (4) Steinbach r. Rhinelaa- der, and Steinbach v. Church, 3 Johns. Cas. 269. (5) Tom. 2. p. 156. for ■which he cites Strac- cha, gl. 6. n. 9. and San- terna, p. 3. n. 19. & 21. (6) Routh V. Thompson, 1 1 East. 428. Case of the risk having in fact expired before the po- licy is made. (75 Park, 562. Case of a part only of the value in- sured being at risk. Return for prior insu- rance. (8) Locce- nius, 1. 2. c. 5. 9. V, ; Amery v. Rodgers, 1 ]:sp. 207 ; Holmes t). Unit. Ins. Co. 2 Johns. Cas. 329; I'olloch V. Donaldson, 3 Drill. 510. (9) Kyrc r. Cilovf-r, 16 Kaat, 2Hj. the premium was returnecl.(l) A bottomry interest not being insured as such,{2) and goods being insured, but none being put on board answering to the description in the policy, the assured had a right to repayment of the premium.(3) In case of insurance upon a vessel that had been at the place where the risk was to commence, it appeared that the insurance had been made through mistake, and that the party who effect- ed the policy had no interest, nor any authority to insure for those who had an interest, and who were also named in the po- lic}'. The court decided in favour of a return of premium. Mr. Justice Kent, however, dissented from this opinion, on the ground that the person who eftected the insurance, after having procured a policy, in which, those who in fact had an insurable interest were named, w^as not at liberty to allege that he had no authority from them.(4) Upon this principle Emerigon says, if it be stated in the policy that the assured himself loaded the goods on board, he shall not be permitted to allege the con- trary.(5) But if the assured is not precluded by the contract itself, or the circumstances, from alleging a mistake or want of interest, and he shows that the policy was eftected through a misappre- hension ; that he supposed himself to have an interest, when in fact he has no interest ; he is entitled to a return of the pre- mium. (6) The risk may have terminated, in fact, before the policy is made, yet if it be so made that it would have applied to any loss that might have happened during the risk, no return of pre- mium can be demanded ;(7) that policies often bear such a con- struction we have seen under a preceding title. Upon the same principle, which entitles the assured to a re- turn of the whole premium, where he has no interest at risk, he is entitled to a return of a part of the premium, where only a part of the value insured is ever at risk under the policy.(8) It has been held that a part of the premium may be returned in a policy on profits for short interest ;(9) that is, if the profits on a certain quantity of goods be insured, and only a part of the goods arc put at risk. American policies contain a provision that, ' if the assured has made any prior insurance upon the property, the insurers shall be answerable only for so much as the amount of such prior in- surance may be deficient towards covering the property, and shall return the premium upon so much of the sum insured as they shall be exonerated from by such prior insurance,' except- ing half per cent ; or other words equivalent. Where the expression was prior in date^ the court said, ^ prior in date., as used in policies, is equivalent to prior in time ;' and diftcrent policies, bearing the same date, and being executed on the s^mc day; evidence was admitted to show which was executed (n'st.(a) In a policy eftected in New York, on the 29lh of May, it was sli|)ulated to return fifteen per cent 'in case an insurance had {(i) J'.rown V. Ilnrtford Ins. Co. 3 Day, 58. Sect. 1. Where there is no Risk. 505 been cffecicd in Europe.' Another policy was eirccted at Ham- (i) New York burg on the 19th of June following. It was held that this sti- Ins. Co. v. pulation referred to a prior insurance only, and accordingly that Thomas, 3 the assured were not entitled to a return of prcmium.(l) °^^^' ^^' ' It has been held in New York, in an action on a policy in which The clause as it was stipulated that this clause should take cflcct in case of a ^o prior insu- prior insurance ' on the premises aforesaid ' that to make the P"'^'^ ^,^''^ui° clause applicable, the two policies must amount to a double in- only where surance, or that they must be on the same subject, against the il\\c ^'^^^ ^^ ^^^^ arrival, or arrival without any loss, is of the same j)ri:r7iiiim for character as the abatement of one or two per cent in the payment »:if.: :.rriv:ii,is of Josscs ; it is an enhancement of the premium in case of loss, acoudiUonal ^5 tlic abatement is an enhancement of it in general. This re- Sect. 2. Stipulations for Return of Premium. 511 turn for safe arrival is also of irregular operation, being the same, enhancement whether the loss is greater or less. The stipulation is very much of the pre- in the nature of a wager on the safe arrival of the property, and '"'""^* is in some degree a departure from the principle of indemnity. , Suppose an agreement to be made in all policies to return one quarter of the premium for safe arrival. In this case an addi- tional premium ought to be given, according to the number of safe arrivals, compared with that of losses. This being ascer- tained in general, the wager may be made upon a fair calcula- tion of chances ; but still the stipulation is a wager, since the object of it is not to give indemnity. If the condition of the return be the arrival of the property; without regarding whether any loss has happened, the character of the stipulation is the same, with this difference only, that it must be kept in mind, in computing the amount of additional premium to be demanded, that the chances of arrival, are greater than those of safe arrival. It was agreed in a policy on sugars, that if the vessel sailed Return for with convoy and arrived, the underwriter should return eight convoy and per cent of the premium. A part of the sugars were lost. ^'■"^^^• Lord Mansfield said, ' In this stipulation, no regard is had to the /jn gimonj ,,. condition of the goods. It docs not require that all the goods Boydell, should arrive 5a/c.'(l) ^ Doug. 268. In a policy on freight, it was agreed to return a part of the Return for premium ' if the ship arrived.' The ship was captured and re- ^"'^^ • captured, and afterwards arrived, no abandonment having been made. The court decided, on the authority of the preceding xf ^j^^"'^-*^^* case, in favour of a return premium.(2) j^_ 417. ' In a policy on a ship for a voyage ' from Lisbon to Cadiz, and thence to Flushing,' the premium was ' at the rate of twenty per cent, to return eight if the ship sailed from Cadiz with con- voy for England, and two more for convoy to Flushing, or ten, if with convoy for the voyage, and arrived.^ She sailed with convoy for England, where she was condemned as enemy's pro- perty. It was held, that there should be no return of premium. Lord Ellenborough said, ' The words and arrived, annex a con- (3) Kellnerr. dition which over-rides and governs equally, all the several Le Mesurier, stipulations for a return of premium. '(3) "* ^^^^ •^^^' In the preceding case, the arrival was prevented by a risk AVhetherare- not insured against; the underwriters not being liable for a ^V*"" '^^'^ .^!. ,c> '. IT-.--1 ^ 4 1 claimed if the seizure and condemnation by the British government. Accord- arrival of the ing to this case, therefore, it makes no difference whether the ship be pre- happening of the condition be prevented by a peril insured vented by a against or not. Another case seems to countenance this doc- ^ured"aeain3t trine. It was agreed in the policy to return eight per cent of the premium, if the ship sailed with convoy. The ship was warranted to sail on or before the 1st of August, but did not sail within this warranty, and accordingly did not sail within the policy, or at the risk of the insurers. Yet no question is made . ^ „ about a return of premium, which does not appear to have been Greyson^'^ ^^ claimed. (4) _ Park, 588. But another case seems to favour the doctrine, that if the condition is prevented from happening by some peril not insu- 512 Return of Premium. Chap. XXI. red against, that is, if the insurers are in the same situation they would have been in, had the condition literally taken place, the premium shall be returned. The insurance was upon goods to some port in the Baltic, ' until they should be arrived' at such port, and ' until the same should be there discharged and safely landed ;' free from seizure in port, and to return a part of the premium ' for arrival.' The ship arrived at Pillau, and the goods were seized by the officers of government in the outer harbour of that port. The court doubted whether the goods had so arrived as to entitle the assured to a return of premium. They must therefore have considered arrival to mean a safe, ar- rival, for otherwise there could be no doubt, as the goods were landed after being seized by the officers. The goods then ar- rived safe as to any of the perils insured against, but not so in respect to other perils. Mr. Justice Bayley said, they' ar- ( Daldeish ^'^^'^^ safely for the purpose of exonerating the underwriters r. Brooke, 15 fi'om all risks of the voyage.' And the opinion of the court East, 293. was in favour of a return of premium.(l) Two decisions in New York seem to favour the opinion that the condition of a return of premium, will be construed very nmch in reference to the risks insured against in the policy. A vessel was insured on a voyage from New York to Teneriffe, and thence to Bona Vista and back to New York, with the pro- vision to return one per cent of the premium ' if she did not proceed to Bona Vista, the risk ending safely.' She sailed from u; noDen- Tcneritfe to Madeira, which being a deviation, the risk ended at Ins. Co. 8 ' Teneriffe, and safely, as respected the underwriters. A return Johns. 383. of one per cent of the premium was recovered. (2) The other case was on a policy from Malta to St. Peters- burg, to return a part of the premium if the risk ended safely at Gothenburg. The risk ended at the Downs, where the cap- Firem^'f^"c' ^^^^ ^^^'^ ^^*2^" ^^^^ voyage. This entided the assured to the re- 12 Johns.! 14." ^^^^^ of premium. (3) These cases do not strictly support the doctrine, that where the happening of thecondition is prevented, independently of the risks iiisured against, the assured shall be entided to a return of premium ; but they at least establish the doctrine, that where the condition is equitably complied with, the return may be claimed, if they do not show, that where the cir- cumstances arc equivalent, as between parties, to a compliance with the condition, the same effect will follow. Section 3. Forfeiture of a Warranty or Condition. Although the assured has an interest to the amount insured, cx|)oscd to the ])erils insured against, yet if the insurers are at no time answerable for any loss by those pprils, the assured will 1)0 entitled to a return of the premium, unless he is precluded from claiming it, in coiiscf|ucnce of some misrepresentation, con- cealiiHMil, or oilier iraudulcnt or unfair conduct on his jiart. The case ah'cady cited, of an aj)i)urti()nment of the |)i-cmium, where the warranty of convoy IVom I'ortsmouth to Halifax was Sect. 3. Forfeiture of a Warranty or Condition. ^1^ not complied with, shows that a forfeiture of a condition, on (i) Stevenson which the risk depends, is a ground for claiming a return of ''• ^°°'*^'jl premium.(l) l Bl. 318. If in consequence of a breach of warranty, without any fraud, the risk is never incurred by the insurers, the premium is to be returned. The other cases of apportionment, cited above, establish this principle, which is taken for granted in them all, the only question in each, behig, whether it is applicable in the ^^iij.^°j?Jj^ particular case.(2) s^gT'-Marsh. One condition on which the commencement of the risk de- 660. pends, is the sea-worthiness of the ship. A question as to re- turn of premium in such case arose under a policy on a vessel from Surrinam, in regard to which, Chief Justice Mansfield said, ' Here is a ship kept a month at Surrinam in loading, and to all appearance, in the judgment of mankind, certainly seaworthy, and if she had been burnt or sunk there, the underwriters could have made no defence. It would be very strange if the assured could say, on its being proved that the vessel was not seaworthy Ttshen she finally sailed, that therefore the unseaworthiness shall be carried back to her arrival as Surrinam.' He accordingly takes for granted, that if the vessel had been proved to have been unseaworthy at the time when the risk was to begin, the premium must have been returned ; and Mr. Justice Lawrence (3) Amun >.^ expressed the same opinion.(3) Tamft"S9^ Mr. Justice Lawrence had expressed the same opinion, while he was one of the justices of the King's Bench. He said, ' The consideration of an insurance is paid, in order that the owner of the ship, which is capable of performing her voyage, may be indemnified against certain contingencies ; and it supposes the possibility of the underwriter's gaining the premium : but if the ship be incapable of performing the voj^age, there is no possi- ('^) (-hnstier. bility of the underwriters gaining the premium.'(4) k.^igs.^"^' Lord Chancellor Hardwicke expressed an opinion, that the premium should be returned, where, on account of the forfei- (5)Henkler. ture of a warranty, the risk never commenced. The case- was J?;*'^- ^?- '^"• that of a warranty of the national character of the vessel. (5) ^i-i The claim for a return of premium, in consequence of a breach of a warranty, or a forfeiture of a condition, on the part of the assured, has been more explicitly recognized in the American courts. In Massachusetts an assured demanded a return of premium on account of the unseaworthiness of a new vessel, in which an auger hole had been left open in the keel, and there were also two large worm-holes in the bottom, at the time agreed upon for the commencement of the risk. One of the judges thought that the assured ought not to take advantage of his non- (^) I'orter r. compliance with an implied warranty, especially after the rilk MaTs!^Rep. had ended ; the other three judges were in favour of a return 436. of the premium. (6) The same court afterwards decided in fa- CT) Penniman vour of a return of premium on account of the unseaworthiness Mas" R*^'/^ of the vessel.(7) 66. The same point has been decided in the same manner in New York. A brig warranted Danish, was condemned as French. 65 514: Return of Premium. Chap. XXI. A retuni of premium was adjudged, the court observing, that (i)peiavigne jj^^^pg appeared to be no fraud on the part of the assured, and Co. 1 Johns', that there was no circumstance, from which they could infer Cas. 310. that he knew the vessel not to be as warranted.(l) in a case (2) Murray v. ^f a similar warranty, Mr. Justice Radcliff said, ' as no actual 2 Johnr'cas f^'^^d appears, the assured are entitled to a return of the pre- 168. See also mium.'(2) Mr. Justice Livingston expresses an opinion that the Mr. Justice premium for insurance on goods, is to be returned, in case of Radcliff's j-j^g unseaworthiness of the vessel.(3) And the same court has r^Unit.Tns."^ held, in difterent cases, that a forfeiture of a warranty of national Co. 2 Johns, character, without any fraud, entitles the assured to a return of Cas. 187. tiie premium. (4) But to give the assured this right, it surely (3) Graves ?•. Y\[, to ai^pear that the forfeiture of the condition, or breach luar. Ins. i^o. o t r • i i i i 2Caines 339. of warranty, was such as uncjuestionably to have exonerated (4; Eibers r. the underwriter from any liability under the policy; and that Tfi^'/ h °^' i^q' ^^^ forfeiture of the contract by the assured was so apparent, Uuo-uet r. " ' that the underwriter could not have been ignorant of it, without Rhinelander, great negligence on his part. 1 Johns. Cas. xhe clause, that 'if the vessel should, upon a survey, be ^ * thereby declared unseaworthy, by reason of being unsound, or rotten,' obviously contemplates, says Mr. Justice Johnson, giving ,.. „ the opinion of the court, ' that a state of rottenness ascertained I'ac. InT.'co. iit 'itiy period of the voyage insured, shall be conclusive evidence 7 Wheat. 611. of original unsoundness.'(5) If a survey is held, under this clause, to be proof of unseaworthiness at the commencement of the risk, it might raise a question as to the right to a return of premium. In a previous case, however, where the risk com- menced on the 24th of October, and a report was made by sur- veyors on the 26th of November, Mr. Justice Gushing said, ' The defence set up is, that the vessel was unsound and rotten on the 24th of October, and it is alleged that the report of the surveyors is conclusive evidence of that fact. But the repoi't does not apply to that time.' Mr. Justice Washington thought that the report ' applied to the 31st of October,' when the vessel Co o^f^Alex'* sprung a leak. It is distinctly implied by the judgment of the r.°i\"iison/J court that the report did not apply to the time of the commence- Cranch. 187. rnent of the risk. (6) Section 4. lllegalitij and Fraud. (7) .'{Burr. ''1 casc of fraud on the part of the underwriter, as where he [{){)9. 1 HI. underwrites, knowing of the arrival of the proper!}^, he is, on 604; Park, |},j^ account, under a still stronger obligation to return the pre- (f^Kri 10 iiiium.(7) y\nd where the policy is void on accoimt of his fraud, 16, 17. h. t. or where he knew, at the time of underwriting, that it was void, (0) Ins n. it is held by Valin,(f}) Pothier,(9) and Emerigon,(lO) that he is n<)\ Tom 2 "^^ entitled to deduct the one half per cent. Mr. Marshall |). 169.°'" cites their opinions as being law,(l 1) and of this there seems to (11) p. 677. ])v no donbl, since a pai-ty caiiiiol have a right to retain money IVaudulcntly obtained. Sect. 4. lUe^ality and Fraud. SIT) In all the cases where the assured has recovered back the premium, on account of the failure of the risk, by reason of the unseaworthiness of the ship, or of any forfeiture of an agree- ment or warranty on the part of the assured, courts have'inva- riably made the honesty and fairness of the transaction on his part, one of the conditions on which he was entitled to recover back the premium. Where the insurance was void, on account of the concealment of a letter containing information which would unquestionably have prevented the underwriter from taking the risk, the court said, the withholding of the letter w^as )};X I^°y\)'- fraudulent, and ' the insurance being avoided for such a cause, Mass. Rep. the assured is not entitled to a return of preraium.'(l) 336. If the contract be void for illegality, the assured is not in ge- neral entitled to a return of the premium. It has, however, been held, in some cases, that the premium for an illegal insu- rance may be recovered back. But it is not easy to distinguish precisely upon what principle some of these exceptions to the general rule depend. A policy having been made, which was void by the English statute against gaming policies, the assured, after the risk had ended, claimed a return of premium ; and Lord Mansfield was at first of opinion that no return could be claimed, upon the ground that both parties were equally guilty of a breach of law, in which case the rule in pari delicto melior est conditio possidentis, was applicabp,. On the next day he expressed a doubt of this opinion, because the money had been paid upon an executory agreement, which could never be completed. He afterwards said, ' It is certainly true, in many instances, that first thoughts are best. I am now very much inclined to my first opinion. This is a gaming policy, and against the act of parliament ; and therefore it is clear that the court will not interfere to assist either part^^' Mr. Justice Buller said, ' If the law was mistaken, the rule applies ignorantia juris non excusat. There is a distinction between contracts executed and executory; and if an action is brought with a view to rescind a contract, you must do it while the contract continues executory, and then it can be done onlj^ on the terms of restor- ing the other party to his original situation. There was a case of Walker v. Chapman some years ago in this court, where a sum of money had been paid-in order to obtain a place in the customs. The place had not been procured, and the party who had paid the money, having brought his action to recover it back ; it was held he should recover, because the contract remained executor}^. So if the assured, in the present case, had brought their action before the risk was over, and the ..,, Lo-^ypy ^. voyage finished, they might have had a ground for their de- Bourdiru, mand.' (2) Doug. 468. In a subsequent case, the action was brought to recover a wager that the English colonies of North America would be ac- knoAvledged independent by France before a certain time. Lord Mansfield was of opinion that the wager could not be re- covered against the underwriter, but he permitted a verdict to be given for the amount of the premium, on the ground that the 516 Return of Premium. Chap. XXI. policy was void, and that the insurer had money in his hands which he ought not to retain. He distinguished this case from r. DeLaRive ^^^ preceding, on the ground that the preceding was a case of a Park, 573. contract executed before the relief was applied for.(l) Mr. (2) P. 6.42.n. Marshall (2) remarks that the cases could not be so distinguished, since the last action being brought to recover the wager, the risk, if it be considered an insurance, must have previously expired, and it had in fact expired five years before. A case very similar to the last was afterwards brought before the same court. A party paid to another 100/. on condition that the other should pay him 300/. if peace should not take place between England and France, before the 11th September, 1797. Although this was held to be an illegal wager, it was still held that the 100/. might be recovered back, the court saying, ' It was more consonant to the principles of sound policy and (3)Lacaus- justice, that money paid upon an illegal consideration should be sade V.White, recovered back, than, by denying the remedy, to give etFect to '''T.R. 531. ti^e illegal contract.'(3) Upon this principle it has been held, Goiightiy*^^''^ that money paid for insuring lottery tickets may be recovered Bl. 1073 ;' ' back.(4) Jaques v. And Lord Ellenborough intimated an opinion, that a return of AViity, 1 H, premium might be claimed where the assured should undertake (5) Siffken v. ^^ illegal trade with the public enemy, from a misconstruction AUnutt, 1 M. of a license which h;, supposed to authorize the trade.(5) It is kS. 40 ; difficult to refer these cases to any principle whereby they will StEmifoHh 4 ^PP^ar to be exceptions merely to the doctrine, that the premium Camp. 270. of an illegal insurance cannot be recovered back, and not incon- See also Hen- slsteut with that doctrine. In a subsequent case the court stated l-^tu'a T^^"r the grounds on which the case was taken out of the general rule. S. 122. Insurance was made upon goods in behali oi subjects ot Uussia, by their agent in London, after a declaration of war by Russia against Great Britain in 1807, but before the declaration was known in England. The insurance being void, as made in be- half of an alien enemy, a return of premium was demanded. Lord Ellenborough said, without dou})t the premium cannot be recovered back, ' if the party making the insurance know it to be illegal at the time : but here the plaintifls had no knowledge of the commencement of hostilities by Russia when they effected this insurance ; and therefore no iiiult is imputable to them for entering into the contract ; and there is no reason why they ,^. ^ should not recover back the premium which they have paid for (C>) Oom V. . .. 1 • I ■'^, ,- 1 • '^ , , ^ 1 iJruce, 12 ^" uisurance, Irom which, wuhout any lault imputable to them- Kast, 225. selves, they could never have derived any benefit. '(6) The policy was void, on account of illegality arising from a fact not known, and that could not have been known to the assured at the time of cOc'cUng the insurance. The contract was not made with the intention of violating the law, or through ignorance or mistake of the law. Insurance was made in England on Russian commodities by (»■) 12 Car. 2. ^ '"Swedish vessel, for a voyage from Riga to Hull. This voyage c. i({, ?. !!. }»eing against the navigation act,(*) could not be legally under- takfii wiilioiii a license. The assured had written on the 3d of Sect. 4. Illegality and Fraud. 517 September, from Riga, to his agent in England, to obtain a license ; which, on account of the delay of the letter by con- trary winds, was not obtained until the 7th of October. The vessel had sailed on the 3d of that month. The voyage was accordingly illegal, and a return of premium was claimed. Lord EUenborough, C. J. ' The assured had reasonable ground to suppose that the license would be obtained before the ship sailed ; he contemplated a legal voyage. His agent in England was ignorant of the time of the ship's departure ; he also con- templated a legal voyage. The illegality depended upon a fact which was not known to the parties, and was contrary to the expectation which the assured might reasonably entertain ; and staniforth^5''' we think he is entitled to recover back his premium. '(1) But M. &; S. 122. it has been held in many cases, besides that of Lowry r. Bour- dieu, above cited, that afthough the policy is void on account of its illegality, and nothing could have been recovered of the un- derwriters, who accordingly could have run no risk, yet the premium cannot in such case be reclaimed, if the parties knew or might have known, and so must be presumed to have known, at the time of making the contract, that it was illegal. The money deposited in a wager upon the event of a horse race prohibited by statute, was paid over by the stake-holder to the winning party, with the consent of the other party. The loser brought an action to recover back the money. Lord Kenyon said, ' There is no case to be found, where, when money has been actually paid by one of two parties to the other, upon an illegal contract, both being participes criminis, an action has been sustained to recover it back again. Here tko money was not paid on an immoral, though on an illegal, consideration. And though the law would not have enforced the payment of it, yet having been paid, it is not against conscience for the defen- (2)Howson dant to retain it.'(2) UT.^R.liL The British statute against the exportation of wool,(3) makes (3) 12 Geo. an insurance upon such an exportation void, and provides that l^\*v^^* no return of premium shall be made on the policy. - ^, Hewit/^i ' Insurance being made on a voyage to Holland, then at war East, 96. 'see with Great Britain, the policy was held to be void ; but the Biggs v. Law- court held that the premium could not be reclaimed, and Lord ^t'V^f'p?''^' Kenyon said, ' There is no distinguishing this from a smuggling ,., panaiuna^^ transaction, where the vendor assists the vendee in running the 5. T. R. 466 ; goods. He cannot recover back the goods themselves, or the Waymeilr. value of them.'(4) f^f^ ^ ^- ^♦ A foreigner being insured in England on a voyage from Cal- cutta to Copenhagen, which voyage was against the British /^^n Morck r navigation laws, the policy was held to be void, but the pre- Abel, 3 B. & mium could not be recovered back. (5) And a reassurance ^- ^5. being void as against the British statute on that subject, the same opinion was given in regard to the right of recovering Fletche/^3T' back the premium. (6) A similar decision was given on the R. 266 right of the assured to be repaid the premium on a policy on a voyage from the West-Indies to Gibraltar, which was prohibited 518 Return of Premium. Chap. XXL (1) Lubbock by Statute, Lord Ellenborough saying, ' every person must be F ^f° 44q^ taken to be cognizant of the law.'(l) ' ■ It has been held in New York that the assured cannot re- ,c\ £^Q J J cover back the premium paid for an illegal insurance.(a) And rrMoiris, upon thc Same principle, if a loss be paid by an underwriter, in Cowp, 790. an illegal policy, he cannot recover back the money .(2) Section 5. JVhat Payment is a ground to claim Return. To give a right to claim a return of premium it is not requi- site that the premium should have been literally paid, though something equivalent to payment, as between the assured and underwriters, must have been done, as it would be absurd to claim a repayment of a premium, that had not, as between the parties, been paid. A foreign merchant ordered his agent in London to effect insurance, who employed a broker for that purpose; the underwriter charged the premium to the broker, he to the agent, and he to the foreign rrierchant; the broker at the same time crediting the insurer for it, he having an account both with the insurer and with the agent. A return of premium becoming due, a question was made whether the premium should be considered as paid between the assured and insurer, the premium having only passed in account by the several parties, but not having been actually paid by either of them, (^) P^ ,^p' &"d in the mean time the broker and the agent had both become gou 4 Taunt, bankrupt. It was held, that as between the assured and insurer, 24Q. the premium should be considered as having been paid.(3) It is a general nde in England that the broker is debtor for the premium, and his being so, is a payment of it as between the assured and underwriter. It has been held in Massachusetts that the assured has a right to a return of a premium for which he had given his negotiable note, which had not been paid by the maker nor negotiated by the payee, [payable to the broker probably, and including the premium for the different under- writers, there being a number of underwriters, the one of whom the premium was reclaimed being the last] though the note had not been paid or negotiated. The court said ' the underwriter expressly acknowledges the receipt of the premium ; and (4) Ilcmmcn- yvhcther it was ])aid to him in cash, or in merchandise, or a ne- lord J4Mas3. got^i'^blc note, the action to recover it back will still be in the JUp'. 12J. same fonn.'(l) {(i) .Iiilicl V. Church, 2 .lolms. Cas. 333. It seems that in France a j)r(rriium paid lor an insurance, that is prohibited by law, may be recovered back; 1 ICmer. 1!)1. Poth. h. t. n. 27. and also for in- surance on property of an alien enemy, which is held to be void. 1 Emer. 1 29. Chap. XXII. Liability of Agents and Brokers. 519 CHAPTER XXII. DUTY AND LIABILITY OF AGENTS AND BROKERS. Insurance by private underwriters is commonly eflected through the asfencv of a broker. Other agents, besides profes- (l)Lucenat. sioiiai brokers, are often employed to efl'ect policies and adjust j^ j^ geg losses, both with incorporated and private underwriters. In (2) Wolff v. England generally, and in the United States frequently, where Homcastle, 1 the policy is subscribed by private underwriters, the broker is fo\p^'^^^J agent for both the assured and insurers. The policy is gene- ^,. Hunter 8 rally subscribed by the insurer himself, or, in his behalf, by his T. R. 2'J. attorney, specially empowered for this purpose ; a more formal authority being generally given to authorize an agent to sub- scribe a policy, than for the purpose of authorizing any other act relating to the effecting of a policy, or the settlement of a loss. It has been said that the consignee of goods, has authority, whether a as such, and without any special instructions, to effect insu- consignee, ass rance.(l) But this would probably depend upon the particular suf'hihas circumstances, for it can hardly be supposed that the mere fact h^gure" ^ of consigning goods to a foreign merchant, without any orders as to insurance, would of itself be a sufficient authority upon which to effect insurance, and charge the consignor with the /^ v u ' o (^4^ trench f. premium. _ Backhouse, 6 Where a consignee, having orders to insure, refused to comply Burr. 2727 ; with them, it was held that the general agent of the consignor ^^''^ufur'^ '_•, was authorized to insure.(2) A prize agent as such has the r. 03. ' same authority.(3) But the master of the vessel, merely as (5) Routh r such, is not authorized to effect insurance.(4) Thompson, 13 The subsequent adoption of an agent, and ratification of his ^'^^' ^''^" acts, has been held to be equivalent to a previous authority, subsequent Where the captors appointed an agent to take care of the cap- an a^^nt^r*^ tured property, and ordered him to insure on their account, and acts is equi- also on account of whom it might concern ; although the cap- vaient to a tors, in the particular case, had no insurable interest, the insu- [J^qJ!;'""^ ^^' rable interest being in the king, yet it was held that an insurance ^ y made in pursuance of such orders, and afterwards adopted and e/m.TusV ratified by the king, was valid. The agent intended to act in Co. 4 Mass. behalf of whom it might concern. (5) It is a general rule that Rep. 232; where one acts voluntarilv in behalf of another, intending to act „"» ^*' ' 1 • 11 11- 1 1 1^ • ' • i^obinson, as his agent, such other may adopt his acts, and thereby give 2Caines, him authority retrospectively.(6) 284; Albott It has been held that one duly authorized to procure insu- p ^'^"^"^-f '^^ ranee is thereby authorized to make abadonment,(o) and adiust / ' *' "^ .1 1 //\ i\ / J ^,^ acrent to the loss.(6) p,^^ 5 ^ j^^^^, (ff) Ches. Ins. Co. r. Stark, 6 Cranch, 268 ; Wolffr. Ilorncastle, 1 B. to"a?andoa'^^ ' & P. 316 ; Dutilgh v. Gatliff, 4 Dall, 447. See also Parker r. Towers, 2 Browne App. 80. (6) Richardson r. Anderson, 1 Camp. 43. n. 520 Liability of ,/Jgcnts and Brokers. Cliap. XXII. Possession of the policy. (1) Shee r. Clarkson, 12 East, 511. (2) Betliune r. Neilson, 2 (Jaines, 139. Mr. Justice Livingston dissented. ,\n authority to subscribe, is such to ad- just a loss (3) Richard- son r. Ander- son, 1 Camp. 4. a. (4) Smith r. Coloean, 2 T. R. 188. n. (5) Snook V. Davidson, 2 Camp. 218. {(;) Randolph r. Ware, 3 Cranch. 503. In wliat cases n rorr<'! are thiee instanc(>s in which the orders to insure for a correspondent abroad must be obeyed : 1. Where Chap. XXII. Liability of Jlgents and Brokers. 521 the merchant abroad has effects in the hands of his correspond- (i) Smiih v. ent here ; 2d. if he has been used to send orders for insurance, J>ascel)ts, 2 an(] the corresj3ondent here to comply with them, he has a right '^- ^' ^^'''• to expect his orders will be obeyed, unless he has notice to dis- p-rench v. continue that course of dealing; 3d. if he send bills of lading Reed, 6Binn. •with orders to insure, the correspondent here must obey the or- 308; DeTaa- ders, if he accept the bills of ladine;, for it is one entire trans- |tr r. Crousil- action.Xl) Although orders are given to msure, among others, Marshall, against one risk in regard to which the insurance would not be soi. n. -, Mor- valid, still, if the policy would not be thereby void, but would '"'^/j ^V"^" , protect the property against the other risks, the orders are bind- Marsh. '^"^^ ^ ing, notwithstanding that they include one risk which cannot be 301. n. lawfully insured against.(2) It is the duty of a broker or agent, who undertakes to effect Duty of the a policy, to make no representation otherwise than he is in- ^?^"t "? ^^' structed, or than the facts will justify ; and to procure a valid ^ancef '"^"' policy, conformable to his instructions, and subscribed by un- derwriters of good credit. Although the agent may be under ^f^ ^^^^^^L^'* no obligation to comply with the order to get insurance, yet if ^ §_ 52. he undertake it, he will be answerable for the due execution (3) French r. of the order ;(3) and although he undertakes the agency volun- Reed, 6Binn. tarily, without receiving or expecting any commission, he is not the less answerable for doing well, what he undertakes.(4) If an agent neglects to procure insurance, or if, through his The effect of fault, the policy is not conformable to the orders, or such as the tion, and so was riot covered by the policy. There were said to be two offices in London, where fruit was insured without this exception. The loss was claimed against the agent. Lord Mansfield said, that to make him liable, he ' must be guilty either • of a breach of orders, gross negligence, or fraud. The plain- tiff, if he pleased, might have given orders not to insure at the London Assurance-Office, but at some other, where this excep- tion would not have been insisted on. But he gives no such directions at all. Therefore he left it to the discretion of his (4) Moore v. correspondent, who, if he meant no fraud, was at liberty to Mourguc, 1 . i' I.U 1 •* V4\ Cowp. 579. elect between the underwriters. (4) „, . The broker must effect the policy according to the custom in must be ac- the particular voyage. Brokers were ordered to eflect insurance cording to the ' at and from Teneriffe to London.' Many brokers tcstificd,'that custom of the u,i(jci- such an order, and without any particular instructions for ^^^'^'■' the purpose, it was the invariable practice to insert, ' liberty to touch and stay at all, or any, of the Canary Islands.' Lord ^■'^i^hlTt^ Kllrnborough held, that the brokers were liable for damage Camp. 15IJ. arising from the omission of this liberty in the policy.(5) ,., ,. A broker in London, was directed by his correspondent at must "^bo made Malaga to insurc goods from Gibraltar to Dublin, the correspond- stricUy con- cnt Saying, ' I take the risk on myself from this to Gibraltar formablc to jjj.^^^ whcrc I shall send my letters on shore.' The broker .risiructions. ^^^^.^^^j .^ ^^jj..^ c ^„ j,^,,,}^ .^^ ;^„j f,.^^ (iil.raltar to Dublin.' Gibbs, C. J. 'A broker is bound to have knowledge and dili- Chap. XXII. Liability of Jlgcnls and Brokers. 523 gence, and must execute his orders. If the instructions were (i)Parkr. doubtiul, 1 should think the principal not entitled to recover. Hammond, 1 But I think the letter not doubtful. It was understood, that the Holt, 80; S. goods were to be shipped at Malaga, and the broker ought not 344. gM^^'sh. to have elfected a policy which can only attach on goods ship- Rep'. i89 ; ped at Gibraltar. '(1) 6 Taunt. 295. A misstatement of facts by a consignor and vendor of goods, A misrepre- may have the efiect of making him stand as insurer. Where mentation by a the consignor and vendor made such a representation to the con- rende^r"h[m ^^ signce and pmxhaser, that an insurance upon the representation liable as insu- would have been void, it was held that the consignor thereby >'er. made himself insurer, and the goods being lost by the perils , . usually insured against, he was not entitled to recover the price stewart, 5 of them.(2) Dow, 274. An agent is liable if he cause a policy to be cancelled without authority. The sum of 3000/. being insured by a valid policy, upon the life of a person absent at sea, his agent, supposing that it had been effected through mistake as to the amount, had the policy cancelled, and procured another for a smaller sum. But it appeared that the amount had been insured without any mis- (3) Gray v. lake. The person, whose life was insured, died during the pc- Murray, 3 riod of the risk. The agent, by cancelling the first poKcy, ^^^"^g^^^"' under these circumstances, was held to be liable as insurer; on (^4) Bousfield the ground that he had no sufficient reason to suppose that there v. Cresweii, liad been any mistake.(3) 2 Camp. 545. If the policy remains in the hands of the agent, he is bound The duty of to use reasonable diligence to obtain payment of the loss.(4) an agent m He is answerable for a mistake of his principal's orders, through paymenU)f a haste or carelessness. Where the assured instructed his agent loss. upon what terms he would adjust the loss, and the agent, by a c3\R„„(jig ^ hasty reading of the instructions, mistook them, and settled the Moore, 3 loss upon different terms, he was held to be answerable.(5) Johns.Cas.36. Payment to an authorized broker, is payment to his principal.(6) What is pay- A broker settled a loss which had become due, by taking the ment to the underwriter's bill at a credit of three months. This was held ''•o'^^'"- to be payment to the broker, and made him immediately liable john«on^6* to the assured for the whole amount of the loss.(7) But where Mass. Rep. the insurers initials were struck out of the adjustment in token 193. of payment, and the broker had charged the loss to the insurer, (7) Wiikmson Lord Ellenborough said, 'The assured is never estopped from Taunt^'iiO- demanding the money, unless there is actual payment to the S. C.4Camp. broker, or a credit given.'(a) 17 1- In England, as has been already mentioncd,(8) the broker is (8)Supr.78. generally considered to be debtor to the underwriter, for the premium. But in the United States there is no distinction, in this respect, between an insurance broker or an agent for effect- ing insurance, and any other broker or agent. The broker may become a debtor to the insurer, or a creditor to the assured, for the premium, in virtue of an agreement to this effect,(6) or by holding himself out as principal, he is liable to be so consi- (a) Jell V. Pratt, 2 Starkie, 67. (6) Taylor v. Lowell, 3 Mass. Rep. 352 J Supr. 79. See also Bethuner.Neilson, 2 Caines, 139. 524 Liability of JJgcnts and Brokers. Chap. XXII. (1) Rabone v, Williams, 7 T.R.356. n.; Maanss r. Weldon, 1 East, 335- (2) Mann v. Forrester 4 Camp. 60. See also Westvvood V. Bell, 1 Holt, 122. (3) Bowne r. Shaw, 1 Caines, 489. (4) Edgar v. Bumstead, 1 Camp. 411. (3) Jameson r. Swain- stone, 2 Camp; 546. n. (G) Shoema- ker r. Smith, iJ J3inn. 239. dered by the party with whom he contracts.(l) And the party with whom he contracts is entitled to all the advantages of con- sidering him as principal. White and Lubbern, merchants in London, directed their brokers to effect insurance upon a cargo without making known that the cargo did not belong to them- selves. The cargo in fact, belonged to a merchant at Rostock, to whom it was shipped. A loss happened, which the insurers paid to the brokers. Lord EUenborough said, ' The brokers having had no notice that the policy was not for White and Lub- bern, they had a lien upon it for their general balance. They must be supposed to have made advances on the credit of the policy, which was allowed to remain in their hands.' Accord- ingly, the brokers were held liable to pay over to the assured only the excess, after satisfying their own demands against White and Lubbern. (2) In the United States this rule would be applicable between the broker or agent, and the underwriter.(3) If the agent dis- closes his principal, and does not render himself liable by any special agreement, it does not appear that either of the parties has a right to consider him as principal, in respect to any part of the transaction. In the United States the premium note is generally made payable to the broker, where the policy is made in a private office. Where a broker paid a loss, not knowing that the insurer had previously become bankrupt, Lord EUenborough said, ' Accord- ing to the well known course of dealing between the broker, underwriters, and assured, the money could not be recovered back.'(4) A broker paid a loss, and two years afterwards claimed re- payment of the money, alleging that he had not been able to recover the loss from the insurers. Sir James Mansfield said, ' After so great a lapse of time the broker must be presumed either to have received actual payment, or to have settled with the undcrwi'iters in some way or other.'(5) Where a broker paid the premium to the underwriter, after notice from the assured not to pay it, as the property had not been put at risk, it was held that he could not recover it from the assured. (G) 'i'he rights of lien and sct-olVarc of importance to insurance In-okcrs and agents, but the particular consideration of these subjects is omitted, as not coming within the plan by which this treatise is limited. INDEX. Abandonment, defined, 382 — object of, is to entitle assured to recover the entire value insured — to turn that into a total loss, which otherwise would not be, 383 — is therefore optional with assured whether to make it or not, 383 — is unnecessary, where assured has no right of property in the sub- ject, 382 — or where there is an entire de- struction of it, 382, 384, 385 — is necessary only where there is a constructive or technic- al total loss, 383 — is required, where any part of the thing insured is left, 384 — held neces- sary, where ship is disabled and broken up, 384— or captured, 384, 385— of freight, when requisite, 383, 386 — of profits, whether requisite, 387, 430 — of commissions, when requisite, 388, 433 — in case of reinsurance, unnecessary, 388 — cannot be made, when thing insured is taken from control of assured by peril not insured against, 388 — or where there has been a prior abandonment of the same subject, 388 — whether consignee can abandon cargo arrested in port of loading, 389 — is allowed only in cases of total loss, 382, 436 — therefore necessary to consider what constitutes a total loss, (see Loss To- taV) — right of, depends on facts at the time of abandoning, 400, 401 — whether offer of insurers to pay expense of repairs, 0 — for expenses of det(-ntion by capture, wli(!r(! shij) is released, and earns freight, 3().'' — /;//g(»(;rf.!, wbitber niaib: only by those tliat pay freight, 363, 36 1 — is according to their value, at the time to which aj)portion- INDEX. 529 raent relates, 364 — (hough carried on deck ; and however small their bulk, 364 — insur- er's liability to — whethor it is affected by adjustment in foreign port, 367 to 369 — not affected by value of ship and goods as con- tributory interests, 367 — reasons, 367. See Average. Contributory Value, at what lime esti- mated. In case of expmditures, at time of incurring them, 356, 357 — (qucri/^ where ex- penses are secured by hypothecation, 357) — in case oi jettison, at time when contribution becomes due — at port of delivery, generally, 357 — in case of sale of goods by master, to defray expense of putting into port of ne- cessity, at time of sale, if ship and cargo are subsequently lost, 357. Of ship. In Eng- land and United States, is full value at the time to which the apportionment relates, 358 — how this value is determined in differ- ent courts, 358 — fair rule is the price at ■which the owner could afford to sell her at the time, 358 — this rule excludes from the amount, diminution of value by extraordina- ry sea-damage, &c. 358 — amount of all sub- sequent general and particular averages is to be deducted, in fixing value, 359 — stores and provisions consumed before the loss, not to be deducted from amount on which freight contributes, if ship earns freight, 359 — provisions, &c. intended to be consumed on board, constitute part of value, 359 — so does damage contributed, 359. Of Freight. Not to be reduced by subtracting for wear and tear of ship, consumption of provisions, Sic. before the loss, 361 — otherwise of pro- visions consumed, and expenses and dis- birrsements after the loss, as means of earn- ing freight, 361 — and wages, accruing dur- ing time of earning freight, are to be deducted from its gross amount, 361, 362 — and ex- pense of hiring another ship to carry cargo to destined port, 362 — and contributions to general average, and other expenses incur- red on account of freight, subsequently to the loss, 362. Of Goods. Is reduced by subtracting freight, all averages and sal- vage, &c. subsequent to the loss, 365 — "whether premium is to be included in case of adjustment upon invoice value, 366 — whether freight is to be deducted, in adjust- ing average for expenses or compromise at port of detention, in case of capture, 366. See Average. Convoy, return of premium for, 511. See Warranty. Convoying Prizes, when a deviation, 209. Corporation, the national character of, 26 — can act only in pursuance of its char- ter, 5, 449. Cruising, when a deviation, 205, 206. Date, of policy, is not conclusive as to time when made, 326. Description of the Subject of Insu- rance, if it distinguishes and identifies the 68 thing insured, is generally sufficient, 64 — though tiiere may be a mistake in Ihc name, Szc. 65, 66 — need not, in general, be of the particular kind of interest, 64, 94 — (excep- tion, 64, 65) — by the name of goods, wares, and merchandise, what it covers, 66, 67 — of profils and commissions, how to be made, 70 — of ship, what it includes, 71 — of freight, how construed, 72 to 74 — in reinsurance, whether it must be expressly mentioned to be reassurance, 74. Detention. See Capture and Deten- tion. Deviation, defined, 179 — comprehends not only a departure from usual course, hut also unnecessary delay and other acts, which increase or change risks insured against, 179, 180^ — discharges underwriter from liability to subsequent loss, 181 — distinguished from breach of warranty, 181 — effect of, may be waived by written instrument, 223. 1. Jlcts uhich are. Unnecessary change of ship so as to increase the risk, 182 — re- stricting master to one course, instead of leaving to him usual discretion, 185 — touch- ing at ports, out of the order in which they are described in policy, 185, 186 — unneces- sary stopping at a port, without liberty in policy, 191 — unnecessary delay, after risk attaches, in commencing voyage, 191 — or in landing goods, 191 — delay, or going out of course to save property, 198 — cruising, without liberty in policy, 205, 206 — any delay of ship carrying letter of marque, except for defensive purposes, 206 to 209, 232 — waiting for repair of prizes, 210 — going out of course, &c. by mistake or negligence of master, though without fraud, 223. 2. ^cts which are not. Conforming to usage, as to course of voyage, unless restrict- ed' by policy, f82 — examples, 182 to 184 — seeking and joining convoy, in case of war- ranty to sail with it, 190 — waiting, at port of arrival, for instructions as to port of dis- charge, 191 — varying from usual course, and delay, from necessity, if master acts with good faith, 191 to 193 — making port to refit, in case of necessity, 193, 194 — as well in case of insurance against particular risks, as general insurance, 194 — to obtain seamen, and to avoid capture or other impending peril insured against, 194, 195 — changing of course, by compulsion of crew, 196 — ^Ibr in- telligence and advice in extraordinary cases, 197 — delay for repairs, at port of departure, 197 — going out of course, or delay, to suc- cour the distressed, 198 — delaj' in port, to claim cargo, in case of seizure, 199 — trading at port, at which liberty is given to touch, if no unnecessary delay is made, 200 to 202 — mere taking of letter of marque, without liberty for so doing, 204, 205 — convoying prizes, if without delay, or going off the course, 209 — going out of course, ou account of peril insured against, 210 — mere intention to deviate, 215 — sailing on different voyage before risk attaches, 215, 216. Query, as 530 INDEX. to going out of course, on account of peril not insured against, 210 to 214. See VoTAGE. Touching at Ports. Documents, to prove neutral character, 138. Double Insurance, 326. Duration, of the risk, 170. Embargo. See Capture and Deten- tion. Embezzlement, whether covered by the policy, 258. Enemy. See Alien Enemy. Excepted Losses, by stranding, 485, Sic. — average excepted, on what articles, 486 — what losses come under this description, 486 — whether the absolute destruction of a part of the goods, 492 — loss of the voyage not within exception of average, 489 — ave- rage on all perishable articles, 492 — loss under a certain rate per cent, means one loss, 493 — on what amount computed, 494. See Memorandum. Excepted Risks, 492. See Risks. Factor. See Agent and Broker. Fire, mortgager may insure against, 41 — misrepresentation or concealment avoids the policy, 105 — condition as to certificate in case of loss, 156 — loss by, in marine policy, 248 — loss by civil commotion excepted, 300 — change of risk defeats policy, 223 — what losses covered, 248 — partial loss how com- puted, 375, n. Fishing Voyages, interest in, 55. Foreign Laws of trade may be vio- lated without forfeiture of the insurance, 37, 157. Fraud, forfeits the right to a return of premium, 514. See Representation. Freight, what is, 51 — interest in, when it commences, 51 to 55 — may be insured for a part of the voyage, 55 — whether it must be expressed in policy to be for only part of voyage, 72 — description of, in policy, how to be made, 72 to 74 — risk on, when it com- mences, 169 — loss of, when it follows loss of ship, 290, 424 to 426 — when it follows loss of cargo, 290, 427, 428 — loss of part of, how adjusted, 313, 31 4— «,?/, what is, 316, 317 — advanced, and not in any event to be re- funded, constitutes part of insurable interest in good-x, 323 — amount of insurable interest in, 324 — dej)f nds, as to amount of interest, on contract between owners and shippers, 325 — amount of interest in, is the same for part, as for whole of passage, 325 — is gene- rally valued, 307 — valuation of, 317,318 — contributory value of, 360 to 363 — particu- lar average on, 372 to 375 — total loss and abandonment of, 424 to 430 — what part of, is transferred to insurer on ship by abandon- ment of 9lii|), 473 to 481. See Ahandon- MKNT. l^oss Tiilal. Interest Insura- ble. Conthhjutory Value. Average. Dehcription. GaMINC; I'oLK Y. Sre l'ul,ICV. General Average. See Average. Goods, Wares, and Merchandise, what comprehended in, 66. Hypothecation. See Bottomry. Illegality, of the interest, 29 — of the risks insured against, 157 — of the contract, when it gives right to return of premium, 514, Insurance, contract of, defined, 1 — dif- fers In form only from bond of indemnity, or guaranty of a debt, 2 — differs in substance from a gaming policy, 3 — implied conditions of, 6 — of enemy's property, is void, 19, 160. See Policy. Insurance against Fire. See Fire. Insurance Broker. See Agent and Broker. Insurance upon Lives. See Lives. Insured, defined, 1 — who may be, 19 — alien enemy may not, unless by permission of the government, 19, 20 — (See Alien Enemy) — sometimes so described by general clause, that any person interested, for whom the policy is intended, is comprehended, 57 — forms of expression for thi^ purpose, 57, 58 — manner of describing, provided by Eng- lish statute, to inform underwriter of the person, 58 — those only who are named can avail themselves of policy, unless there is a general clause, 61 — examples, 61, 62 — de- scribed as agents for particular persons, or generally, how construed, 63 — illegal acts of, avoid the contract, if risk is thereby en- hanced or changed, 119, 120, 124 — acts of, out of course of trade and not to be presumed by underwriter, discharge at least from sub- sequent liability, 120 — misconduct of, not insured against, 156, 224. Insurer, defined, 1 — not liable for ordi- nary perils or losses, 245 — different insurers on the same risk are sureties for each other, and he who pays a loss may demand contri- bution from prior or subsequent insurer, 326 — liability of, to pay contributions, 366, 367 — succeeds, by abandonment, to the advan- tages and liabilities of ownership, 458 — (See Salvage) — not liable for wages as such, earned before total loss happens, 462 — but takes goods, saved from wreck, Si.c. by crew of wrecked. Sec. vessel, subject to charge of salvors, &c. 462 to 464 — has an equitable interest in claims for remuneration for losses paid without abandonment, 464 — examples, 464, 465 — is considered as purchasing the property, so far as he pays, or is liable to ])ay, in consequence; of abandonment, for loss of it, 465, 466 — takes goods saved, sub- ject to freight, 467 — whether he may accept or refuse to accept salvage, at his option, 466, 467 — whether by not accepting, when (he goods saved are not worth the freight, he is liable to pay it, 467, 468 — incurs risk of agent's conduct and solvency, after aban- donment, 468, 469. Interest hisnrable, not necessarily wlsat INDEX. 531 is properly called a value or price ; as life, liberty, &:c. 26 — must be something, by damage or destruction of which, assured is liable to direct and immediate pecuniary loss, 27 — must exist at the time of the loss, 27 — is destroyed by forfeiture of property insured, 27, 28 — must be legal, 29 — and not in property employed in trade with public enemies, 29 — nor, in general, in property in enemies' country when war breaks out, 30 (exceptions, 30, 31) — nor in property on voyage known at the commencement thereof to be prohibited by laws of assured's coun- try, 31, 32, 35 — except by license of the go- vernment, 33, 34 — otherwise by laws of foreign states, 36, 37, 157 — interest of sailors in their wages, not insurable, on grounds of policy, 40 — nor of mate, 40 — of mortgager and mortgagee, need not be specially stated, 41, 64, 94 — of trustees, 41 — of lender on bottomry and respondentia, 42 — of borrower, in hypotliecated property, to the amount beyond the value of the pledge, 43 — of con- signee, factor, and agent, in the commissions, &c. 43 to 45 — of supercargo and other per- son concerned in a contract, which may afford him a profit — if he has taken steps to- wards the execution of it, 44 — of agent, is lost if goods become enemy's property, 45, 46 — interest of master of vessel, as such, in cargo, not insurable, 46 — in expected profits, 46, 47 — though it does not appear that any profits would have been produced, 47 — query^ 46, 47 — of captors and prize agents, acquired from government, 47 to 50 — of charterer of a ship, 51 — in freight, 51, 55 — when it commences, 51 to 54 — for part of a voyage, 55 — in fishing voyages, 55, 56 — in reinsurance, so far as the perils insured against in original policy, 56 — in lives of persons, by whose death a direct loss may be incurred, 56, 57 — that only which is intend- ed, covered by the policy, 62, 63 — particu- lar kind of, as of mortgager, &c. need not, in general, be stated, 64, 94 — (exception in case of lender on bottomry and respondentia, 64, 65) — value of, necessity of fixing, 304 — rules for ascertaining, 305 — (Sec Valued Policy. Valuation.) — if not agreed on, must be proved before loss can be recovered, 320 — may change, 320 — period at which it is to be estimated, 320 — general rule — com- mencement of risk, 320 — is not precisely the price current or marketable value, 321 — includes the premium, 321 — amount of, indemnity the principle of computing, 321 — amount of, in ship, continues the same, during the risk, 221 — in ship, what it in- cludes, 321 — of charterer, what, 321 — amount of, in goods, generally determined by the cost, or invoice price, 321, 322 — (exceptions — cases, 322) — includes charges, and freight advanced and not to be returned in any event, 323 — also premium, 323 — and the profits made on outward voyage, 325 — and the abatement reserved by underwriter on losses, 323, 324 — whether bounty or drawback, on goods entitled to them, is to be deducted, 324— m//-ejg/t/, is generally the gross amount, not deducting expenses of earning it, 324 — the amount where same party owns ship and cargo, 325 — is the same for a part as for the whole of a pas- sage, 325 — in profits^ in policy open in form, how ascertained, 325 — in comminxions, amount of, 325 — in life inttresl^ amount of, how ascertained, 325 — in reinsurance, amount of, 325, 326 — in bottomry and re- spondentia, amount of, 326 — in case oi prior insurance, is the excess of value over amount insured by previous policies, 326 — distinction, when policies are between the same parties and against the same risks, and when not, 326 — (See Insurer) amount of, in case of prior insurance, depends on amount previously insured, and valuation in subsequent policy, 327 — in goods, is dimin- ished by withdrawing part of subject insured from the risk insured against, 327 — other- wise in ship, 327 — unless part is withdrawn from risk by operation of the risk insured against, 327 — whether it is diminished, when part of ship is lost and repaired at expense of insurer, 327, 328 — not diminish- ed, in whaling voyages, by consumption of outfits — cargo is considered as a substitute, 327, 328. Jewels, Rings, &c. when they contribute to general average, 364. Jettison, loss by, to be made good by contribution from what is saved, 331, 332 — Avhether officers and crew are to be consult- ed, before making, 332 — requisites of, to compel contribution, 335. See Contribu- tion. Average General. Lazaretto, risks end on goods landed at, 176. Lee-Shore, loss in keeping off from, 257, 336. Letters of MARauE, whether taking of, is a deviation, 204 — how they may be used, 205. Liberty to cruise, &c. 209 — to touch, fee. 203. License to trade with the enemy, 33 — license from the enemy, 34. Lighters, when risk continues in, 175. Lives, insurable interest in, 56 — repre- sentation as to, 110 — whether loss within period of the risk, 292 — effect of payment of a loss, 465. Loss, is general or particular, total or partial, 330 — remote and consequential, in- surers not liable for, but for direct only, 283 — examples, 283 to 285 — upon one subject, by damage to another, subject of, discussed, 288 to 290 — of ship, by wreck or disability, may be a loss of freiE;ht, cargo, profits, and commissions, 288, 289 — of cargo, is not a loss on ship, 290 — of cargo, whereby ship earns no freight, is a loss on freight, 290 — other examples, 288 to 290 — must happen 532 INDEX. before risk terminates, or insurer Is not lia- ble, 290 — examples — ship forfeited during term of risk, but not seized till risk ended, 290, 291 — or sinks in consequence of da- mage received during continuance of risk, 291 — or is detained by embargo, after term of risk expires, 291 — for loss of ship seized during risk and condemned after risk ended, insurers held liable, 29 1 — so in case of ship's arriving at port ^vhere there u'as a hostile embargo, but not seized till time of risk had expired, 292 — if ship is not heard from alter the risk ends, jury are to decide whether loss happened during time of risk, 292 — may exceed amount of insurable interest — in Avhat instances, 330 — by fire, is in its kind extraordinary, 248 — and entiles assured to indemnity, except in cases which involve principles that would deprive him of it in other kinds of loss, 243. Loss, excepted. See Excepted Losses. Loss, Partial^ what is, 330, 369— not dis- tinguished from total by its amount mere- ly, 330 — amount recoverable for, is the da- mage to the subject insured and expense incurred on account of it, 331, 369. See Average. Loss, Salvage, described, 380 — adjusted in same manner as if the goods had been abandoned, 380. Loss, Total, what is, 230, 332— gives assured a risht to abandon, 332 — construc- tive or technical, described, 382, 383. Of Ship. 1. fVhat is. \Vreck, capture, or arrest by superior force, 389 — where there is no force, depends on degree of injury sus- tained in consequence of peril insured against, and the situation in which the ship is thereby placed, 389 — diversity of opinions on this point, 389, 390 — what shall consti- tute, may be agreed on in policy, but is sel- dom done, 390 — breaking up of voyage by perils insured against — and what is, 390 to 392 — highest probability of absolute loss, from known situation, 391, 394 — stranding, in some cases, 393, 394 — damage that cannot be repaired wliere she is, 394, 395 — or that renders her imlit to carry her original cargo, 395 — taken possession of by crew— lecovered and sold by order of assured, 396 — in case of capture and recaj)ture, depends on degree of injury sustained by the capture, 39G — exarnjileg, 396 to 400 — damage exceeding half the value, including all expenses at- tending the disaster, for which insurer would be liable, 401, 405 — whether this means the value in the jwlicy, 401 to 403 — whether two tiiirds of expense of repairs must exceed half the value, 403 to 405— whether the expense ol' repairs extends to prc>existt;nt defects, 405, 406. 2. IVIiat IS not. Loss of cargo, 392 — stranding, in some cases, 393, 394 — deser- tion by crew, and being brought into port by olhcrs, and sold for salvage, the owners having notice before sale, 395 — being seized by crew and carried far out of course, and afterwards recovered — case of, 396 — cases of master's authority to sell, 407 to 412, 421. Of Cargo. 1, TVhat is. Damage or loss exceeding half the value of the goods insured, 414, 416 — either by destruction of part, or deterioration in value of part or the whole, 415 — or by compromise with cap- tors, 415, 416 — excluding articles insured 'free from average,'' 416 — loss by jettison, under what limitations, 416, 417 — such da- mage, by plunder and injury to ship, as makes the voyage not v/orth pursuing, 418 — such damage as makes articles unfit to re- ship, and be sent on the original destination, 418 — such injury from perils insured against, as leaves the subject no longer in specie^ 419 — capture, so long as the property re- mains in captor's hands, 419 to 421 — arrest by embargo, 421 — cases of master's autho- rity to sell, 420 to 424. 2. What is not. Loss of ship, not of course, 412 — cases, 412 to 414 — interrup- tion of voyage for one season — case of, 417 — blockade of port of destination, if ship has liberty in policy to proceed to another port, 417, 418 — safe arrival of part of goods, though less than half in value, 418 — arrest known to be for a short time only, 421. Of Freight. Whether total loss of ship constitutes, 424, 425 — not if cargo is saved and received at intermediate port, or master is ready to carry it to port of destination in another vessel, 425 — nor if master neglects to carry it on, and thereby freight is lost, 426, 427 — otherwise, if ship is disabled and master cannot procure another, 426 — may be caused by total loss of cargo, 427 — of cargo shipped, though another freight is earned, 427, 428 — is not necessarily a loss of whole subject insured ; but of what is at risk at the time, 428. Of Profits and Commissions. Cases, 430 to 433 — whether the rule of more than half applies to profits, 431, 432 — of commis- sions, 433 — is constituted by existing facts, 436, 437 — discussion of this principle, 437 to 440 — mai/ be so treated by assured, as to become partial only — instances, 452, 453 — but is not altered by crejits subse(|ucnt to abandonment — in United States, 457, 458 — otlurwise in England, 455 to 457 — payment oi, or liability to, operates as an assignment, and gives insurer a title to the property, or what remains of it, as far as it was covered by policy, 458 — more than the value at which the subject is insured may be reco- vered of the underwriters, 481, 482, 483 — Marineivs, their wages not insurable, 40 — barratry of, 239 — whether entitled to wages in case of shipwreck, 461. Master oi' Vessel, acts of, insured against by common form of policy, 224, 225 — (See AciKNTs) — must look to the chief general interest, though particular interests art; thereby sacrificed, 399 — may hypothe- cate ship or cargo, in case of necessity, 409 INDEX. 533 — may sell ship or cargo in case of extreme necessity, 409, 410 — is agent of assured, before abandonment, 407 to 412, 421 to 423 — is agent of insurers, from necessity, in- stantly upon abandonment, and his conduct 13 at their risk, 468 — his acts done in good faith and for benefit of all concerned cannot prejudice rights of either party to policy, 469 — whether he ought not to be considered, after abandonment, as sub-agent of assured, until recognized by insurers as their imme- diate agent, 471 to 473 — acts of, are some- times at risk of assured, and sometimes at risk of insurers, 472. Memorandum, its form in different poli- cies, 483, 485, 486 — for what purpose in- troduced, 497. See Exckpted Losses. Misrepresentation. Se» Represen- tation. Missing Ship, when presumed to be lost, 250. Mobs are not a usurped power, 300. Moored in safely^ meaning of, 174. See Risks. Neutral and Neutrality. See War- ranty. Open Policy. See Policy. Owners, who are, as to barratry, 240. Partial Loss, See Average. Parties to the Contract. See Insu- red. Insurers. Payment of premium, what is such, to entitle to return, 519. Perils, in case of a concurrence of dif- ferent, insured against, loss to be ascribed to that by which it is more immediately caus- ed, 285 — this rule of doubtful and uncertain application, 285 — examples, 285 to 288 — to be applied only when loss is caused by one peril, or when it cannot be ascertained how much of it is caused by one, and how much by another, 285. General Clause, of all other perils, losses, &c. how construed, 282 — said to extend to all losses, except by fraud of assured, 282 — generally held to extend only to perils of the same kind with those enumerated in policy, 282. Perils of the Sea. Whether they in- clude damage to ship by being fired into by mistake, 249, 282 — or loss by mutiny, 258. 1. JVhat arc. General statement, 249 — Damage of ship by taking the ground on ebb of tide, 249 — by collision, or running foul without fault of master or crew of ship in- sured, 249, 250 — by beating against another ship in a storm in port, 250 — loss by long absence without being heard from, 250 — ex- pense of wages andprovisionsof crew, during delay to repair — in United States, 253 — otherwise in England, 253 — extraordinary damage to ship, or her apparel, from opera- tion of perils, 252, 254 — examples, 254, 255 — loss and damage of boats, if properly secured, 255 — loss on sails, rigging, cables, and anchors, if distinguishable from wear and tear, and decay, 256, 257 — examples, 256, 257 — so of parting ropes, splitting or blowing away of sails, 257 — loss by piracy, 257. 2. JVhal are not. Damage to ship by bilging from weakness, when hove out to repair, 249 — by shoars being knocked away by tide, 249— by rats, 250, 251— (except in Pennsylvania, 251) — by woims, 251 — (dis- tinction suggested, 252) — expense, &;c. of detention and delay, and of going out of course to refit, on account of perils of sea, 252 — expense of wages and provisions of crew, during delay to repair — in England, 253 — otherwise in United States, 253 — or- dinary damage to ship, and apparel, 252, 254 — examples, 254, 255 — remote and con- sequential losses, 283 — as selling wine, (at port where ship is obliged to put in for re- pairs) to prevent its spoiling by heat, 283 — other examples, 283, 284, 285. Piracy, a peril of the seas, 257 — whether, under risk of pirates, loss by mutiny of crew, is covered, 258 — loss by a mob is included in the clause relating to piracy, 258, 259. Policy, defined, 1 — ancient form pre- served more strictly in England than in the United States, 3 — obscure and strange in- strument, 3 — must be in writing, 4, 5 — con- tents of, in general, 6 — implied conditions in, 6 — (See Warranty) — not affected, in general, by previous communications of the parties, 8, 9 — (exceptions to this rule, 9, 10) — may refer to other writings, or to sub- sequent verbal declarations, so as to make them part of the contract, 10 — may be as- signed, 11 — effect of assignment 11, 12 — how maybe altered by consent, 12 — altera- tion of, without consent, if material, avoids the instrument, 12 — examples, 12 — mistakes in, corrected only in court of chancery, 13, 14^ — construction of, often determined by usage, 14 — examples, 15 to 18 — written words in, control the printed, in case of doubt, 18, 70 — can be applied only to the interest for which it was intended, 62, 63 — should specify the risks assumed, and the time of their commencement, and when and by what event they are to he terminated, 161, 162 — may be both a valued and an open one. .305. Policy, Valued, what is, 305 — is void, if intended to cover illegal purpose, or wager, or is fraudulent, 305, 306 — is generally made, in insurance on vessels, 307 — not so general on goods, 307 — reasons, 307 — value need not be proved, 307 — otherwise in open poli- cy, 307 — in order to make, when goods are thereafter to be declared and valued, de- claration of value must be made before in- telligence of loss, 309 — cases, 309, 310 — but a mistake, in declaring value, may be corrected, 310 — whether it is opened in case of average — cases discussed and meaning stated, 3 13 to 317 — insurance on profits is 534 INDEX. necessarily a valued policy, 319 — so on in- definite life interest, though it is open in form, 320. See Valuation. Policy, Open, what'is, 305 — in case of, in- terest must be proved before loss can be re- covered, 320 — value of interest may change, and must therefore be fixed at some certain period, 320. See Interkst Insurable. Policy, Gaming or fVagering, described, 2 — prohibited by statute, in England, 2, 3 — construction of that statute, 3 — legal in N. York, 2, 39 — illegal in Massachusetts and Pennsylvania, 2, 39 — does not properly be- long to insurance, 2 — criterion of, 4. Preliminary Proof, 497 — distinguish- ed from abandonment, 498 — effect of stipu- lation for, as to credit for a loss, 497, 499. Premium, defined, 1 — rate of, always ex- pressed in the policy, 75 — amount of, does not necessarily appear, 75 — is immediately due ; but in United States not immedi- ately payable, 75 — acknowledgment of re- ceipt of, generally estops insurer from de- manding it of assured, 76, 79 — (exceptions, 77) — payable to broker, when he efi"ects the policy, 76 — not recoverable from assured when broker acknowledges receipt of it, 77, 78 — nor when policy is void without fault of assured, or by its illegality, or when risk does not attach, 79 — whether it is included in a valuation, 311, 313 — constitutes part of insurable interest, 321 — of premium, is in- cluded in insurable interest, 323. See Re- turn OF Premium. Prior Policy, clause as to, 7, 505 — ■when it gives right to return of premium, 505. Prize Agent, his insurable interest, 47 — may insure, 519. Profits. See Interest Insurable. Policy Valued. Valuation. Descrip- tion. Abandonment. Prohibited Trade. Sec Contraband. Quarantine, when the risk continues at, 175 — the risk ends on goods landed at the Lazaretto at Legliorn, 176. Rats, damage by 250. Reinsurance, forbidden in England, un- less insurer is insolvent, bankrupt, or dead, fjS — allowed in France and United States, 56 — illustrates the distinction between in- surable interest, and a projMrly in the thing insured, 56 — interest in, how to be described in policy, 74 — whether it must be expressly mentioned to be a reassurance, 74 — reinsu- rer, having notice of loss under original po- licy and neglecting to adjust it, is liable for reassurerl's expense in resisting claim for loss — including costs of defending suit on oriirinal policy, 285 — amount of inlerc'st in, i.i sum insurfd in original ])oIicy, with addition of premium of reinsurance, 325 — wh<:tln;r original premium is to be deducted, 325, 320 — abandonment in case of, not ne- cessary, 388. Representation, defined, 80 — may be oral or written, 81 — written most advisable, 81 — at what time it must be made, 81, 82 — conduct of assured, &c. may be equivalent to, 82 — examples, 82 — construed according to obvious import, and tantamount to ex- press statement of inferences necessarily arising from it, 82 — examples, 83 — statement of mere expectations or opinions not a re- presentation, 83 — examples, 83, 84 — made to first underwriter extends to others on same policy, 84, 85 — need not include facts of general notoriety, or which the under- writer is presumed to know, 85, 92 — ex- amples, 86, 87, 88, 92 — nor facts stated in the policy, 89 — nor subjects of implied war- ranty, imless inquiries are made, 89, 90, 91, 104, 105 — nor that ship is not ready to sail, 92 — nor that ship has a false clearance, 92 — must disclose all facts and intelligence ma- terial to the risk, which are known, or pre- sumed to be known, only to the party ma- king it, 80, 94— examples, 93 to 101— though the intelligence be doubtful, and proves to be incorrect, 94, 95 — -facts must be fully and fairly disclosed, 103 — but not specula- tions, and apprehensions grounded on them, 103 — nor facts, of which the underwriter has knowledge from any other source, 104 — controlled by express warranty, 106, 107 whether it aS"ects an implied warranty, or controls a usage, 9, 107, 108 — waiver of, by underwriters neglect to inquire, 108, 109 — may be withdrawn before policy is executed, 109 — compliance with need not be literal, if it is equitable and substantial, 109 — exam- ples, 109, 110 — if false or insufficient, the contract is void, 80, 110 — though by mis- take or forgetfulness, and not by fraud, 80, 111. Respondentia. See Bottomry. Return of Premium, where no risk is run, 503 — for short interest, 504 — for a j)art of the risk ; question of apportionment of premium, 506 — for convoy and arriA'al, 511 — for forfeiture of warranty or condition, 512 — not made in case of fraud, 514 — nor in case of illegal contract, 515 — except where ihc illegality depends upon a fact not known to the parties, 516 — wliat is sulFicient payment to be a ground of a claim for return, 518. Restraints. See Capture and De- tention. Risks, defined, 1, 157 — most usual men- tioned, 224. Illegal, ivhat are — of loss by violating law, 157 — (exception in case of foreign trade laws, &,c. 157 — and foreign ad- ministration of law, 158) — by assured'sown misconduct, 158, 224 — by hostile acts of in- surer''s government to a foreigner, 160, 161. Legal, what are — of loss by acts of govern- ment of assured, 159, 160, 230 — by acts, not hostile, of insurer's government, to neu- trals, 161 — must be sullicienlly, but need not be minutely described, 161, 162. Com- menccmenl of, may be prior to date of j)oli- cy, 163 — cannot be at such j)oint of the INDEX. 535 voyage as assured may select, 1C4 — nor un- til assured has an interest, 164 — when, on ship insured ' at and from,' 165 — on goods, ' at and from,' from time they are put on board, 165 — when, on goods, ' from the load- ing thereof,' 166 to 169— on freight, from time when insurable interest therein ac- crues, 169 — on goods, ' from' a place, from time of ship's sailing, 170. Conlinuanct of — generally limited in policy, 170 — how con- strued when not thus limited, 170 — until ship is moored, &c. in general policy to place having divers ports, is until first volun- tary mooring, &c. 171 — to Barbadoes and a market, is from island to island till cargo is disposed of, 171 — to ship's port of discharge, is to port where bulk is first broken for pur- pose of discharging, 171 — to port or ports, is to time cargo is discharged, 172 — same, in case of insurance to Bilboa or port of dis- charge, 172 — to port of discharge, is not of course to port of arrival only, 172, 173 — to last port of discharge, how construed, 173 — on goods ' till safely landed,' is on them in public lighters, 176 — on goods to coast of Labrador or Africa, until landed, is while ship lies on the coast, 176, 184 — on goods, twenty-four hours after they are landed, is till all are landed, 177. End of— is made by delivery and reception of cargo at place shortof port of destination, 174 — bygivingup voyage, 174 — by breaking up of voyage by peril not insured against, 174 — on ship, by arrival and being moored twenty-four hours in safety, when such is provision of policy, 174, 175 — though ship arrives in a gale, if she does not suffer till after twenty-four hours, 175 — by safely mooring at port of destina- tion, at the usual place of mooring, when no provision is made in policy for further con- tinuance, 175 — not by arrival of part of car- go of fishing voyage, in another ship, 174 — on cargo, by delivery to consignee, 175, 176 — by landing at the Lazaretto, at Leg- horn, 176, 177. Inttrruption and suspen- sion of — remarks upon, 177, 179, 180 — on goods at an intermediate port, is only while they are on shore, 178. Change of, when not justifiable, discharges underwriter from subsequent loss, 181 — as by stowing goods on deck, 182 — by changing ship, 182 — not by removing ship from place to place in harbour, 182. — (See Deviation) — Enhancement o/, by subsequent events beyond control of assured, does not discharge insurer, 247 — examples, 247, 248, 259. Period o/,whether loss happens during, ^c. — (See Loss.) — Ex- ception of particular, sometimes expressly specified, 292 — excuses insurers, when it is doubtful whether the excepted risk did not contribute to the loss, 299 — of contraband articles, exempts from all loss in consequence of such articles being on board, 292 — of illicit and prohibited trade, relates only to goods insured in the policy, 292 — not from arbitrary seizure without proof of such trade, 293, 294, 295 — whether it exempts from loss by seizure under pretence of illicit trade, when such trade is not in fact attempted, 293, 294, 296— extends only to such pro- hibitions as the government has a right to impose, 293, 294 — and extends to such pro- hibitions though imposed after risk com- mences, 293 — but not to prohibition which is a consequence of a peril insured against, 295 — extends to prohibited trade permitted by officers of government without its autho- rity, 295 — does not extend to goods known by the insurer to be prohibited, 296 — of violating blockade, whether it extends to loss by reason of blockade in fact, without inquiring into its legality, 281, 295, 296— does not extend to a sailing for blockaded port, not knowing it to be such, 296 — of loss from violating existing regulations, applies only to those in force-when policy is execut- ed, 296 — of seizure, equivalent to capture, 290 — of seizure in port, or in port of dis- charge, how construed — cases — 296 to 299 — of confiscation by the government, does not apply to case of such government's renounc- ing the property in favour of another, 298 — of all risks in port, except sea-risk — case of, 398, 299 — of all risks in port, extends to port of necessity as well as other ports, 299 — of ordinary perils of sea, extends to shipwreck, 299 — of detention, includes a hindrance from proceeding by blockading squadron, 300 — of loss by usurped power, extends not to mobs, 300 — otherwise of civil commotion, 300 — other excepted risks, 300. (See Bottomry Interest) — continuous, hazardous, dividing into different portions, 321. RoBBERT, Rovers, &c. whether, under risk of rovers. Sic. loss by mutiny of crew is covered, 258 — under risk of rovers, thieves, and assailing thieves, assured is protected against all robbery and plunder as well on shore as on the sea, 258, 259 — but not against simple larceny without violence, 258. lluNNiNG-FouL, is a peril of the sea, 249. Sailors. See Mariners. Salvage, what is, 459 — so much of, as is received by assured, or lost by his default, to be deducted in adjustment of total loss, 459, 460 — whether insurer is at risk of loss or diminvition of, on freight or profits, in con- sequence of abandonment of ship or goods, 429, 432, 459 — amount of, to which insurer may be entitled on abandonment, ought not to be diminished by different valuation in other policies, 459 — cases on this point, 460 — must be taken by insurer, subject to lien or charges that arise from perils insured against, 340, 461 — as compensation to salvors ; which, in case of shipwreck, k.c. is deter- mined by court of admiralty, and in case of recapture, by statutes, 461, 462 — and in case of shipwreck, &c. has been allowed at the rate of wages, if properly is saved by 536 INDEX. crew of wrecked vessel, 462 to 464 — whether it may be accepted or refused at the option of the insurer, 466, 467. Salvage Loss, what is, 380. Salvors, lien of, 461. Sea Letter, described, 138, 139. Search, Right of, 143. See Warranty. Sea-Worthiness, always an implied warranty or condition, 6, 89, 113 — same decree of, not necessary in port and at sea, 116, 197 — is always presumed, till contrary is proved, 116 — relates to the beginning of the risk, 117 — breach of warranty of, dis- charges underwriter from all subsequent liability, 117, 118 — (one exception, 118, 119) — to constitute, ship must be of proper construction, 113 — must, in some instances, be able to carry full cargo, 113 — must be sufficiently furnished, 114 — must have suffi- cient stores and supplies, 114 — must have a skilful master and competent crew, 114, 115 — and a competent pilot, where it is cus- tomary to take one, 1 15. Ship, what it includes, 321 — contributory value of, 358. See Contribution. Inte- REST_ Insurable — particular average upon, 369. ' See Average. Short Interest, return of premium for, 504. Slip. See Agreement for Insurance. Stipulations, usually inserted in a po- licy, 6, 7, 8. Stranding, what is, and to what losses it applies, 484. Subject of the coiitract. See Interest Insurable. Thieves. See Robbery. Time of Sailing, warranty of, 130. See Warranty. Touching at Ports, must, in general, he in the order described in the policy, 185, 186 — whether their order in the policy must be followed instead of the geographical order, 186, 187 — cases on this subject, 186 to 188 — liberty to touch at any ports what- ever, restrained to ports in course of voyage, and to purposes connected with voyage, 188, 189 — may be enlarged by other provi- sions in the policy, 189 — conditional liberty to touch, is to be taken strictly, 190. Underwriter. See Insurer. Usage, affects the construction of the policy, 14 — determines the meaning of words and phrases, 15, 16 — must be definite, general, and well known, 17, 18. Valuation, binds parties as to value of property, if fair and not intended to cover a wager, 306 — though made at a high rate, 306 — must be very excessive to raise pre- fumplion against its validHy, 307 — often iricluflr:s accruing and expected profits, 307 — does not preclude! inquiry whether whole intereit is at risk, 317 — affects only parties to it, 307— cases, 307, 308— is not inlerred from agreement to require no proof of inte- rest, 310 — of articles, endorsed on policy, case of, 310 — of goods, is of interest of as- sured, 310 — of outward cargo, in policy on voyage round, is of proceeds, 310, 311 — at a certain rate per pound, is to be understood pound of place where policy is made, 311 — when Scfid to fix prime cost, means amount of insurable interest, 311 — whether it in- cludes the premium, 311, 312 — does not, where made at a certain rate per franc or per pound, 312 — of freight of whole cargo, extends only to that of goods laden, 317 — of freight, ' carried or not carried,' how con- strued, 318 — of freight of a voyage which has intermediate stages at which it is earned up to the time, &c. 318, 319— of net freight, how construed and applied, 316, 317 — may be above the gross amount, if without fraud, 317 — whether profits are impliedly valued at the amount insured ; difference between English and American doctrine, 319, 320 — rules of, in case of insurance of goods, &c. against fire, the same as in relation to ship or cargo, 320. See Policy, Valued. Visitation of neutral vessels, 143. See Warranty. Voyage, what is understood by, 179 — to be pursued in usual manner, 179 — change of, what constitutes, in distinction from a deviation, discussed at length, 216 to 223 — not proved by taking a false clearance, 223 — fishing, insurable interest in, 55, 56 — whaling, outfits work into cargo, which is a substitute, and the interest is not thereby diminished, 327, 328. Wages of mariners, are not insurable, 40 — in case of shipwreck, 461 — who liable for, in case of abandonment, 462. Warranty, Express, defined, 124 — the most usual mentioned, 6, 7, 8 — is operative, though the act or circumstance is immate- rial to the risk, 125 — does not require the word warrant, 125 — made by any direct or incidental allegation of a fact relating to the risk, 125 — examples, 125, 126 — must be strictly and literally complied with, 127 — non-compliance with, always discharges the underwriter, though no damage is occasion- ed, 127, 128 — to be construed, like other cases, by usage and common acceptation, 128 — incidental, whether to be construed as strictly as a formal one, 128, 129 — com- pliance with, excused by a subsequent law forbidding it, or when prevented by a peril insured against, 129 — whether it has a re- tro^^jxctive operation, 120, 130 — that there shall be no contraband goods on board, un- derstood to be contraband of war, 154 — that ship is well on a certain day, not broken, if ship is well on any part of that day, 154 — Of lime of sailing, how construed, 130 — ship, after sailing, sto|)ping for convoy, 130, 131, 132 — from an inland port, construed to be from plac(! of final clearance, 132, 133 — refers, in insurance from different ports, to INDEX. 537 last port of lading, 133, Of tirat of depar- ture^ construed to Ije leaving port, 134. Of convoy. English statutes, 134 — means for the ■whole voyage, 135 — taking such as go- vernment provides, is a compliance, 135 — and for such part of the voyage as is usually supplied, 135 — master must take sailing orders from commander of convoy, 135 — no breach of, if parted by inevitable accident or inability to sail sufficiently fast, 135. Of neulralUy, defined, 135 — may be made inci- dentally, as well as directly, 135, 13G — falsification of, as to part, defeats policy as to whole, 136 — requires that property be wholly neutral, 136 — is broken, if property is contracted for with a belligerent, to be delivered to a neutral in neutral country, 136 — or is sold to a belligerent during the risk, 137 — not broken, if property becomes belligerent without act of assured, 137 — breach of, in case of colonial trade., what is, 137, 138 — breach of, by failure of documents to show national character., l38 — requires that the proper flag be borne, 138 — that a sea-letter or pass be on board, if government ■will furnish it, 138, 139, 140— that the re- gister, shipping-paper, muster-roll, bills of lading. Sic. should indicate the true national character, 140 — that papers shall not be concealed, 140, 141 — that simulated papers shall not be carried, unless by leave in policy, or by usage of the trade, 141 — that belligerent goods shall not be disguised as neutral, 141 — whether it requires assured to claim property after capture, 153 — breach of, hy misconducting the voyage., 142, 143 — as by resisting legal exercise of the right of search, 144, 145, 146 — by sailing under bel- ligerent convoy, 147 — exception, 146 — not broken, by carrying belligerent cargo, or neutral cargo in unarmed belligerent ship, 147 — nor in ship formerly under belligerent protection, 147 — breach of, by violating blockade., 147 to 153— what is legal blockade, and how it must be declared and notified, 148 — is violated., by entering or sailing from the port blockaded, 149 — by sailing for the port with intention to enter, after notice, 149 — by lingering about the port, &c. after warning, 149, 150, 153 — by proceeding to mouth of harbour to inquire if blockade is raised, 150 — by proceeding, after notice, to a port blockaded after ship sails, 150, 151 — is not violated., by coming out of blockaded port in ballast, 149 — or with cargo laden before blockade, 149, 276 — or cargo im- ported before blockade and still on board, 149 — nor by entering or leaving port by per- mission of officers of blockading squadron, 150 — nor to enter from necessity in distress, 150 — or by license of the government block- ading, 150 — nor hy irdand transportation of goods to or from the port blockaded, 150. Other particular warranties., 155, 156. Warranty, Implied., described, 112 — most usual — that there shall be a full dis- closure of all material facts v/ithin (he spe- cial knowledge of the assured, 6 — that there shall be no deviation, 6 — that the vessel is sea- worthy, 6, 112 — that she shall be docu- mented and navigated in conformity to her national character, 113 — that the cargo., in- sured by a neutral, is also neutral, 121 — otherwise of freight., 121 — that the voyage shall be conducted in compliance with laws, treaties, &c. 113, 119, 122— distinguished from a representation, 112 — non-compliance with, effect of, 117, 124 — subjects of, need not be represented by assured, 6, 89 — does not extend to exclusion of belligerent, nor of contraband goods, from neutral ship, 120, 121, 153. Wear and Tear of the ship, not insured against, 245, 253. Worms, damage of the ship's bottom by, 251. 69 ^ote. It ought to be mentioned, that since this work went to the press, an in- accuracy has been pointed out to me on page 56, in specifying the interest in fishing voyages, which is corrected in the errata. I have been told, also, that the statement on page 257, respecting the practice of paying for losses, occasioned in keeping off from a lee-shore, is too broad and general. The reader is referred to page 336, on that subject. The statement at the bottom of page 371, respecting a deduction of one third from commissions and marine interest allowed for supplying funds to make repairs, as I have learned since the passage was printed, is not strictly accurate as a matter of practice, and the point seems to be questionable upon principle. SSrrata. Page 47, line 7, for ' principal,' read ' principle.' Page 56, line 3, after ' owners,' read, ' and charged partly to the master and hands in the proportion of their interest in the proceeds of the voyage.' Page 293, line 5, after ' having,' read, ' been.' Page 300, line 31, for ' Gibbs,' read, ' Abbott.' Page 356, in margin for ' 7 Mass. Rep.' read, ' 9 Mass. Rep.' Page 371, line 7, from bottom, omit from ' If commissions, &c.' to end of para- graph. Page 375, n. for 60, read 48— for 150, 120— for 375, 345— for 225, 285— and for 343.66, 343.75. Page 392, line 21 from bottom, after ' does,' read ' not.' Page 429, margin, after ' Ins. Co.' read, ' 15 Mass. Rep. 341.' LIST OF CASES CITED. Abbott v. Broome, 113, 395, 519 V, Sebor, 47, 421, 431, 452 The Abby, 32 Adams v. Del. Ins. Co. 420, 437 V. Lindsell, 6 The Adelaide, 149 The Adonis, 151 The Adventure, 461 Aguilar v. Rodgers, 14, 511 Airy v. Bland, 78 The Brig Alerta v. Bias Moran, 461 The Alexander, 30 Alexander v. Bait. Ins. Co. 290, 393, 437 Allan V. Hearne, 40 Allwood V. Henckell, 383, 441 Alsop V. Coit, 110, 441, 522 Alston V. Campbell, 41 Amery v. Rodgers, 504 Amory v. Gilmau, 2, 39 V. Jones, 265, 490 Armroyd v. Un. Ins. Co. 155 Anderson v. Edie, 57 V. Pitcher, 135 V. Roy. Ex. Ass. Co. 419, 488 V. Wallis, 391, 417, 489 Andree v. Fletcher, ' 56, 74, 517 Andrews v. Glover, 412 V. Mellish, 186 V. Marine Ins. Co. 97 Angerstein v. Bell, 175 The Ann, 26 Anna Catharina, 34, 138 Ann Green, 22, 26 Annen v. Woodman, 116, 118, 613 Anonymous, (Skin. 327.) 110 (5 Taunt. 606.) 157, 158 (2 Salk. 444.) 159 V. Sands, 28, 419 Anthony v. Moline, 34, 259 The Apollo, 151 Appleton V. Crowningshield, 301, 302 Archangelo v. Thompson, 234 The Ariadne, 35 Arnold v. United Ins. Co. 26 Arnot V. Stewart, 523 The Arthur, 253 Assievedo v. Cambridge, 40, 419 Astley V. Ray, 27, 81 Atherford v. Beard, 40 Atherton v. Brown, 9, 107, 125 Atkinson v. Abbott, 32 The Atlas, 27, 137 Atty V. Lindo, 425 Audley v. Duff, , 135, 170 The Aurora, 27, 35 Austin V. Drewe, 228 B Backhouse v. Ripley, 182 Baillie v. Moudigliani, 289 Bain v. Hippen, 215 Bainbridge v. Neilson, 437, 440,441, 455 Baker v. Beasley, 78 V. Pain, 14 Bakewell v. United Ins. Co. 487 Bank of U. S. v. Deveaux, 26 Barber v. Fletcher, 83, 84 Barclay v. Cousins, 46, 319 V. Stirling, 74, 290 Baring v. Christie, 142 V. Claggett, 142 V. Henkle, 484 V. Roy. Ex. Ass. Co. 142 V. Veaux, 297, 299 Barker v. Blakes, 102, 120, 147, 161, 284, 443 v, Ludlow, 15, 487 V. Phoen. Ins. Co. 125, 138, 140, 330, 349, 483, 498 Barnewall v. Church, 92, 116, 223, 245 Barras v. London Ass. Co. 171 Bartlett v. Walter, 51, 64, 73, 94 Barton v. WoUiford, 301 Barzillay v. Lewis, 138 Bates V. Grabham, 13 Bazett y. Meyer, 259 540 LIST OF CASES CITED. Bean v. Stupart, Beatson v. Haworth, Beatty v. Marine Ins. Co. Beckwaite v. Nalgrove, Beckwith v. Sydebotham, Bell V, Anslcy, V. Bromiield, 10, 125, 128 186 450 93 92 62 141 Bell, 55, 72, 104, 163, 282 V. Beveridge, 443, 447 V. Carstairs, 85, 122, 124, 225 V. Gilson, 20, 31 V. Hobson, 168 V. INixon, 384 V. Puller, 466 V. Reed, 113,116 V. Smith, 358, 500 Bempde v. Johnstone, 23 Bentaloe v. Pratt, 184 Berens v. Riicker, 137 Bermon v. Woodbridgc, 1 17, 503, 508 The Bernon, 24 Bethune v. Neilson, 523 The Betsey, 148 Betty Cathcart, 410 Beuise Van Konnigsberg, 34 Biays v. Ches. Ins. Co. 492 Biggs V. Lawrence, 517 Bilbie V. Lumley, 502 Bill V. Mason, 175 Bird V. Appleton, 35 Birkley v. Presgravc, 332, 336 Bize V. Dickason, 78 V. Fletcher, 106 Blaaupot v. Da Costa, 466 Black V. Marine Ins. Co. 298 Elackburne v. Thompson, 25 Blackenhagen v. London Assurance Company, 174, 196, 260, 264 Blackhurst V. Cockell, 127,154 Blagge V. N. Y. Ins. Co. 88, 138, 141, 277 Bodwy V. Union Ins. Co. 59 The Boedes Lust, 25, 33 Boehm v. Bell, 48, 503 V. Combe, 231 Bohlen v. Del. Ins.' Co. 227, 444, 446 Bond V. Brig Cora, 198 V. Gonsales, 135, 190 V. JVutt, 131, 190 Bondrett v. Henligg, 178, 259, 285 Bordes v. Hallett, 419, 458, 482 Bousfield V. Barnes, 308, 327 V. Creswell, 523 Bowden v. Vaughan, 84 Bownc V. Shaw, 102, 104, 293, 524 Bowring v. Klmslic, 484 Boyd V. Dubois, 94, 246, 248 Boyfield v. Brown, 468 Boyle V. Atty, 423 Bradhurst v. Col. Ins. Co. 227, 343, 426 Bragg V. Anderson, 188 Brandon v. Curling, 20 V. Nesbitl, 19, 20 Brazior v. Clnp, 223, 228 Breed v. Katon, 211 V. Ship Venus, 349 Brewer v. Union Inn. Co. 265 Brewster v. KitduU, J29 Bridgman's Case, Bridges v. Hunter, Brine v. Featherstone, Bromley v. Hesseltine, Brough V. Whitraore, Brown v. Girard, V. Carstairs, V. Plartford Ins. Co. V. Neilson, V. Phoen. Ins. Co. V. Smith, V. Tierney, V. Vigne, V. Union Ins. Co. Browning v. Morris, Bute V. Turner, Bulkley v. Derb. Fish. Co. Buller V. Fisher, Burnett v. Kensington, Burr V. Foster, 409, 410 93, 105, 117 84, 85 23, 33 71 110 177 504 292, 384 384, 444 258, 396, 453 297 173, 174 236 518 106 35, 156 250, 370 584 96 Bush V. Roy. Ex. Ass. Co. 115, 229, 249 Butler V. Wildman, 261, 282 V. AUnutt, 31, 34 The Byfield, 34, 148 C Calbraith v. Gracie, 87, 136, 279, 442, 444, 447, 449 Calhoun v. Ins. Co. of Penn. 149, 234 The Calypso, 149 Cambreling v. M'Call, 384 Camden v. Anderson, 35, 36 V. Cowley, 171 Camelo v. Britten, 36 Campbell v. Bourdieu, 135 V. Christie, 12 V. Junes, 102, 104 V. Stein, 36 Candt V. Union Ins. Co. 141 Cantillon v. London Ass. Co. 484 The Cargo of the Emulous, 19 The Carl, 34 Carrere v. Union Ins. Co. 141 Carroll v. Boston Marine Ins. Co. 27 Carson v. Marine Ins. Co. 320, 322 Carruthers v. Shedden, 62 Carter v. Boehm, 39, 81, 86, 87, 109 V. Roy. Ex. Ass. Co. 185, 216 V. Union Ins. Co. 11 Cary v. White, 423 Tlie Catharina Maria, 34 Case V. Davidson, 477 Cazalct V. St. Barbe, 401 Caze V. IJaltimore Ins. Co. 289 V. Richards, 342, 344 Chalmers v. Bell, 35 The Charlotta, 150 Charlotte, 37 Chaurand v. Angerstein, 104 Chesapeake Ins. Co. v. Stark, 442, 448, 457, 519 Cheriot v. Barker, 13, 18, 64, 74, 317 Chinnery v. Blackburne, 474 Chitty V. Sclwyn, 155 Christian v. Combe, 501 Christie v. Secretan, 83, 122, 513 Church V. Bedient, 437 V. llubburt, 63, 293 LIST OF CASES CITED. 541 Clapham v. Cologan, 66, 125 Clark V. United M. & F. Ins. Co. 193, 313, 348, 366 Clarkson v. Phoenix Ins. Co. 341, 401, 415, 459, 469 Clason V. Smith. 80, 94 Cleveland v. Un. Ins. Co. 124, 170, 181, 225, 226 Clendining v. Church, 4, 39 The Clio, 34 Clugas V. Penaluna, 517 Cock V. Townson, 205 Cockey v. Atkinson, 16 Corking v. Fraser, 487 Cockran v. Retberg, 10, 16 Coffin V. Newburyport Ins. Co. 186, 228, 322 V. Storer, 462 Cohen v. Hannam, 62 Coit V. Columbian Ins. Co. 15, 487 V. Delaware Ins. Co. 117 V. Smith, 287, 291 Cole V. Marine Ins. Co. 80 Colquhounv. New York Firemen Ins. Co. 35 The Columbia, 148, 151 Columbian Ins. Co. v. Lynch, 178, 326, 505, 509 The Comet, 149 Constable v. Noble, 13, 16, 164 Conway v. Davidson, 159 V. Forbes, 63, 159 V. Gray, 44, 63 Cook V. Com. Ins. Co. 238 V. Essex F. & M. Ins. Co. 264 V. Graham, 14 Cooke V. Oxley, 6 Coolidge V. Blake, 155 V. Gloucester Mar. Ins. Co. 317, 373, 4GS'., 429, 434, 459, 480 V.Gray, 172 V. N. York Firemen Ins. Co. 138, 300 The Copenhagen, 347 Cormach v. Gladstone, 202 The Cornelia, 34 Cornu V. Blackburne, 19 Corp V. Un. Ins. Co. 269 Cosmopolite, 34 Coster V. Phosnix Ins. Co. 18 Covington v. Roberts, 336 Coulon V. Bowne, 80 The Courier, 150 Cousine Marienne, 34 Cousins V. Nantes, 4 Craig V. Murgatroyd, 326 V. United Ins. Co. 35, 269, 498 Craufurd, v. Hunter, 49, 309, 519 Cross V. Shutliffij, 186 Crousillat v. Ball, 234 Crowningshield v. N. Y. Ins. Co. 223 Cruder V. Phil. Ins. Co. 116,194 Cruikshank v. Janson, 129, 130, 132, 164 Cullen V. Butler, 249, 282 Cumming v. Forrester, 78 Curling v. Long, 54 D. Da Costa v. Edmunds, J 82 Da Costa v. Firth, v. Jones, v. Newnham, V. Scandret, Dalgleish v. Brooke, Dale V. Hall, Dalmada v. Motteux, Dalzell V. Muir, Darby v. Newton, Davidson v. Case, V. Willasey, Davis V. Boardman, V. Gildart, Davy V. Hallett, V. Milford, Dawson v. Atty, Dean v. Dicker, Dederer v. Del. Ins. Co. Defflis V. Parry, De Garey v. Clagget, De Garrow v. Galbraith, De Gaminde v. Pigou, D'Eguino V. Bewicke, De Hahn v. Hartley, 40, 501 39 253, 405 95 297, 512 250 35 78 36 430, 478 53 63, 156 326 54, 429, 479 419,488,492 82, 110, 122 40, 419 235, 236 34 135 501 78, 518 135 10, 109, 127 Deidericks v. Com. Ins. Co. of N. York, 435 Delano v. Bedford Mar. Ins. Co. 159, 284 Delaney v. Stodart, 11, 201, 521 Delavigne v. United Ins. Co. 514 Delonguemere v. Phcenix Ins. Co. 54, 318 V. N. York Ins. Co. 54, 88, 126, 162 De Luneville v. Phillips, 20 Dennis v. Ludlow, 90, 125, 133 Denison v. Modigliani, 204 De Paiba v. Ludlow, 40 Depeyster v. Col. Ins. Co. 251, 402, 405 V. Gardner. 102, 293 De Symonds v. Shedden, 66 De Tastet v. Crousillat, 521 De Vignier v. Swanson, 58 Dhagetoft v. London Ass. Co. 1 1 The Diana, 24 Dick V. Allen, 375 Dickenson v. Commercial Ins. Co. 92 Dickey v. United Ins. Co. 175, 299 Dobson V. Bolton, 484 Dodge V. Union Mar. Ins. Co. 290, 349, 359, 362, 411 Donath v. Ins. Co. of N. America, 63, 509 The Dorothy, 360 Dorr V. N. England Mar. Ins. Co. 292, 446, 420,436, 448, 519 V. Pacific Ins. Co. 155, 514 V. Union Ins. Co. 419, 441, 445, 446 Dos Hermanos, 26 Douglas V. Moody, 341, 356, 358, 363, 365 V. Scougal, 113,117 Dow V. Smith, 115, 501, 502 Drinkwater v. London Ins. Co. 300 Driscol V. Bovil, 196 V. Passmore, 196, 239 Duerhagen v. United Ins. Co. 190 Duffell V. Wilson, 27, 81 Duguet V. Rhinelander, 26, 102, 514 Dumas v. Jones, 61, 74 Duncan v. Coates, 447 542 LIST OF CASES CITED. Duncanson v. M'Clure, 36 Dunham v. Com. Ins. Co. 346, 360, 370, 371 Dunlop V. Gill, 35 Duplanty v. Commercial Ins. Co. 66 Dupuy V. United Ins. Co. 402, 403, 404 Durell V. Bederley, 94 Dutilgh V. Gatliff, 458, 519 Duval V. Commercial Ins. Co. 299 Dyson v. Rowcroft, 489 Dwyer v. Edie, 57 E. Earle v. Rowcroft, 231, 234 V. Shaw, 12, 158, 191, 444, 446 V. Harris, 131 Eden v. Parkinson, 137, 160 V. Poole, 348 Edgar v. Bumstead, 78, 524 V. Fowler, 78 Edwards v. Fontner, 82, 109 The Edward, 39 Elbers v. United Ins. Co. 25, 514 Elliot V. Wilson, 189 The Elizabeth, 153 Elsebe, 50 Elting V. Scott, 85, 107, 123, 502 Elton V. Brogden, 196, 239 Ely V. Hallett, 103 The Embden, 26 Emanuel, 38 Endraught, 26, 37 Erasmus v. Banks, 313 Erick V. Johnson, 523 The Europa, 34 Everard v. Hollingworth, 135 Evarth v. Blackburne, 36 V. Hannam, 234, 241 Everth v. Smith, 252, 428 V. Tunno, 34 Eyre v. Glover, 47, 70, 320, 504 F. Fairlie v. Christie, 12 Falkner v. Ritchie, 238, 396, 397, 437 Faris v. Newburyport Ins. Co. 55 Farquharson v. Hunter, 183 Faudel v. Phoenix Ins. Co. 293 Faugier v. Hallett, 502 Fayle v. Bourdillon, 34 Feise v. Aguilar, 307, 310 V. BelL, 34 V. Parkinson, 84 V. Waters, 34 Fenton v. Pearson, 21 Ferguson v. Phoenix Ins. Co. 273, 418 Fernandes V. Da Costa, 127 P^iliis v. Hrutton, 99 Fitzherbert v. Mather, 80, 82, 97 n. Fitzsimmons v. Newport Ins. Co. 150 Iletcher v. Inglis, 249 V. Poole, 347 Flindtv, Crockett, 34 V. Lc Mcsuricr, 44 V. ScoU, 34 Foley V. Moline, 99 Fontaine v. CV>lumbian Ins. Co. 322 V. Phoen. Ins. Co. 28, 400, 402, 4 12 V. Same 114 Forbes v. Aspinwall, V. Church, V. Cowrie, V. Wilson, Forrester v. Pigon, Forster v. Christie, Fort v. Lee, 53, 71, 314, 317 218, 503 53 116 85 263 87, 105 The Fortuna, (3 Wheat. 236) 141 The Fortuua, (5 Rob. 27) I5O Fosdick v. Norwich Mar. Ins. Co. 47 Foster v. Hoyt, 40 V. Wilmer, 215, 216 Foy v. Bell, 77 Fowk v. Pinsacke, 78 Fox V. Black, 191 The Frances, 30, 45 Frances and Cargo, 26 Frau Margaretha, ' 38 Frederick, 26 Frederick Molke, 148 Freeland v. Glover, 87,, 105, 109 V. Walker, 34 French v. Backhouse, 519 V. Patton, 12 V. Reed, 521 The Friendschaft, 33 Friere v, Woodhouse, 92 Frothingham v. Prince, 462 Furneaux v. Bradley, 284, 291 Furtado v. Rodgers, 20 G. Gahn v. Broome, 322, 324 Gairdner v. Senhouse, 188 Gale V. Markill, 507 Galloway v. Morris, 40 Gamba v. Le Mesurier, 20, 160 Gammon v. Beverly, 501 Gardere v. Col. Ins. Co. 153, 227, 468 Gardiner v. Smith, 36, 177, 414, 468 Garrigues v. Coxe, 117, 165, 251 Garrels v. Kensington, 137, 143, 145 The Gebroeders, 34 General Hamilton, 149 Goede Hoop, 34 Gernon v. Roy. Ex. Ass. Co. 418, 442 Gibson v. Muir, 37 V. Philadelphia Ins. Co. 302, 323 V. Service, 36, 37 Gilbert v. Redshaw, 201 Gilfertv, Hallett, 198,418 Gist v. Mason, 19, 30 Gladstone v. Clay, 169 V.King, 82,111 Glaser v. Cowie, 161,521 v. London Ass. Co. 488, 490 Glover v. Black, 43, 65, 66 Goddart v. Garret, 40 Godin v. London Ass. Co. 45, 326 Godsall v. Boldero, 325, 466 Goix V. Knox, 158, 282 V. Low, 15, 129, 125, 138, 225 Goldschmidt v. Whitmore, 234 Good V. Elliot, 40 Goold V. Shaw, 283 V l/niti d Ins. Co. 136, 137 Goldsmidtv. Gillies, 313 LIST OF CASES CITED. 543 Gordon v. Bowne, 250, 384 V. Morlay, 135 V. Rimmington, 249,361 Goss V. Withers, 383, 397, 401, 419 Governeur v. United Ins. Co. 195 Gourdon v. Ins. Co. of North America, 11 Goyoa v. Pleasants, 194 Gracie v. Bowne, 311 V. Marine Ins. Co. 17, 177, 492 V. New York Ins. Co. 293, 383, 445, 465, 470 n. Graham V. Commercial Ins. Co. 196 V. Pennsylvania Ins. Co. 294, 295 Grant v. Delacour, 183 V. Parkinson, 4, 46 v.Paxton, 70,183 The Gratitudine, 354, 356, 410 Graves v. Boston Marine Ins. Co. 14, 18, 61 V. Marine Ins. Co. 14, 166, 503, 514 V. Murray, 523 V. Sims, 35 T. Thorndike, 208 V. Wain, 339, 344, 355, 358, 359 Green v. Brown, 250, 384 V. Elmslie, 212 V. Royal Ex. Ass. Co. 386, 410, 428, 466 v. Young, 259 Gregory v. Christie, 66, 183 Gregson v. Gilbert, 227 Greive v. Young, 97 Griffith v. Ins. Co. of North America, 140 Grim v. Phoenix Ins. Co. 226, 235, 337, 248 Griswold v. New York Ins. Co. 360, 427,451 Grove v. Dubois, 78 Guerlain v. Columbian Ins. Co. 10,434,492 Guibert v. Readshaw, 193 The Gute Gesellchaft Michael, 37 H. Hadkinson v. Robinson, 262 Hair V. Marine Ins. Co. 154, 499 Hagedorn v. Bazett, 34 V. Oliverson, 61 V. Bell, 25, 32 V. Reid, 21, 34 V. Whitmore, 286 Haigh V. De La Cour, 306, 502 Hall V. Molineux, 66 Hallet V. Jenks, 31 V. Peyton, 437 Hallman v. VVhitmore, 34 Hamilton V. Mendes, 306, 398, 401, 419, 455 Hammond v. Reid, 189 Harding v. Carter, 521 Harford v. Maynard, 258 Harman v. Kingston, 67, 310 v. Manhattan, 43, 223 The Harmony, 21, 22 Harris v. Eagle Fire Ins. Co. 10, 310 Hartv. Delaware Ins. Co. 52, 74, 405 Hartford v. Jones, 461 Hartley v. Buggin, -202 Hastie V. Depeyster, 285, 388 Hatch V. Smith, 36 Haven V.Gray, 69, 3ll V. Holland, 9, 208 Havelock v. Hancill, 236 V. Rockwood, 340 Hayman v. Moulton, 410, 412 Hayward v. Blake, 35 Haywood v. Rodgers, 10, 89 Head v. Providence Ins. Co. 5, 12 Hedberg v. Pearson, 488 Hemmenway V. Bradford, 518 V. Eaton, 4, 310 Henchman v. Offlcy, 68 Hendricks v. Comraer. Ins. Co. 129, 503 Henkle v. Roy. Ex. Ass. Co. 14, 19, 223, 513 Hennel v. Perry, 28 The Henrick and Maria, 148, 149 Henrickson v. Margetson, 430 TheHenricus, 130 Henry v. Staniforth, 516 Henshaw v. Marine Ins. Co. 219, 349, 374 Hentig V. Staniforth, 516, 517 Herbert v. Hallet, 424, 427 The Herthelder, 33 Heselton v. Allnutt, 191, 215, 217 Hewit V. Henney, 501 Heyliger v. New York Firemen Ins. 340, Company, 363 Heyman v. Parish, 237, 286 Hibbert v. Carter, 41 V. Haliday, 210 V. Martin, 63, 116 V. Pigou, 135 Higginsv. Livermore, 125, 138 Higginson v. Pomeroy, 283, 293 V. Dall, 9, 18, 41, 64, 308, 327, 388, 460 Hill V. Patten, 67, 71, 72 V. Secretan, 42 The Hiram, 35 Hiscoxv. Barrett, 62 Hobbs V. Hannam, 51, 241 Hodgson V. Blackiston, 385 V. Glover, 47, 319, 431 v. Malcolm. 226, 229 V. Mar. Ins. Co. 61, 102, 307 v. Richardson, 166 The Hoffnung, 34, 149, 150 Hog V. Gouldney, 501 V. Horner, 189, 215 Hogan V. Delaware Ins. Co. 14, 15, 18 Holbrook v. Brown, 71 Holland v. Smith, 59 n. Holman v. Johnson, 36 Holmes v. United Ins. Co. 62, 63, 504 Homer v. Dorr, 17, 510 Hood's Executors v. Nesbitt, 232 Hooe V. Groverman, 242 The Hoop, 19, 30 Hope Ins. Co. v. Boardman, 26 Hore V. Whitmore, 130 Hornby v. Houlditch, 230 Horncastle v. Suart, 52, 321 Horneyer v. Lushington, 120, 141, 167 Hoskins v. Pickersgill, 71 Houghton ex parte, 36, 41 Houstown V. Robertson, 78 Howard's Case, 162 Howson V. Hancock, 517 544 LIST OF CASES CITED. Hoyt V. Oilman, 88, 515 Hubbard v. Glover, 83 Hucks V. Thornton, 115,117 Hudson T. Harrison, 414, 442, 450, 457, 469 Hughes V. Union Ins. Co. 203 Huguenin v. Raley, 106 Hull V. Cooper, 105 Humphrey v. Union Ins. Co. 401 Hunter V. Potts, 115,251 V. Prinsep, 64, 412 Hurry v. Roy Ex. Ass. Co. 176, 375, 377 The Hurtise Hane, 150 Hurtin V. Phosuix Ins. Co. 393, 434, 448 Hyde v. Bruce, 128 Jackson v. Colegrave, 78 V. New York Ins. Co. 26 Jalabert v. Collier, 390 James v. Bixby, 423 The Jan Frederick, 138 Jameson v. Swainstone, 624 Jaques v. Golightly, 516 V. Wilty, 516 Jarman V. Coape, 217 Jarratt v. Ward, 210 Idle V. Royal Exchange Assurance Com- pany, 383, 399, 401, 410, 412, 424, 447 Jefferies v. Legendra, 135 Jell V. Pratt, 523 Jenkins v. M'Kenzie, 390 Jenks V. Hallett, 10, 31, 126 Jennings v. Penn. Ins. Co. 65 The Indiana, 26 The Indian Chief, 21, 25, 26 Ingham v. Agnew, 36 Ins. Co. of N. Am. v. Jones, 352, 374 The Johan Pieter, S-i Johnson v. Sheddon, 375, 377 V. Shippen, 409 Johnston v. Ludlow, 294 V. Phoenix Ins. Co. 98 V. Sutton, 32 V. Columbian Ins. Co. 498 Jolly V. Walker, 206 Jones V. Ins. Co, of N. America, 317, 373 V. Randall, 39 V. Schmoll, 283 The Jongc A rend, 34 The Jonge Frederick, 34 The Jonge Johannes, 34 The Jonge Klassina, 25, 34 The Jonge Pieter, 32, 150 The Jonge Tobias, 32, 38, 39 The Jonce Margaretha, 37, 38 The Joseph, 30, 32, 50, 147 The Josephine, 27 Journu V. JJourdieu, 487 Joyce V. Williamson, 301 'I lie JufTrow Catharina, 31, 34 The JufTrow Maria, 148, 150 Jud-.ih V. Ranrlall, 414, 416, 489 Juhcl V. Church, 2, 4, 39, 518 V. RhineUiiirlcr, 69, 102,281 The Julia, 30, 35, 147 'J'he Juno, 34, 149, 150 Jumel V. Marine Ins. Co. 330, 349, 353, 354, 457, 458, 468, 482 K. Kaines v. Knightly, 12, 13 n. Kane v. Columbian Ins. Co. 186, 201 V. Commercial Ins. Co. 309, 327 Kay V. Young, 98 Keir v. Andrade, 31 Kellner v. Le Mesurier, 20, 161, 511 Kemble v. Bowne, 83, 87, 165, 326 V. Rhinelander, 61, 125, 128, 147 Kendrick v. Delafield, 238 Kensington v. Inglis, 21, 34 Kent V. Bird, 4 Kenyon v. Berthon, 10, 126 Kenny v. Clarkson, 43, 64 Ker V. Osborne, 476 Kettell V. Wiegin, 193 Kewley v. Ryan, 67, 68, 215 Keyser v. Scott, 298 Kill V. Hollister, 8 King T. Delaware Ins. Co. 271 V. Glover, 40 V. Hartford Ins. Co. 173 V. Middletown Ins. Co. 173, 191, 394, 405, 406, 452 Kingston v. Girard, 201, 349 V. Knibbs, 88, 184 V. Phelps, 215 Kirby v. Smith, 83 Klein v. Lancaster Ins. Co. 100 Klingender v. Bond, 34 Knight V. Cambridge, 230 n. Knox V. Wood, 45 Koline v. Ins. Co. of North America, 81, 101 Koster v. Eaton, 78 Krumbhaar v. Marine Insurance Co. 295 Kulen Kemp v. Vigne, 4, 290, 392 L. Lacassade v. White, 516 Laird v. Robertson, 12 Lambert v. Liddard, 165 Langdalo v. Mason, 300 Langhorne v. Hardy, 168 V. Allnut, 188 v. Cologan, 12, 64 Lapsley v. Pleasants, Pres. of the IJ. S. Insurance Company, 353, 416 Larochc v. Oswin, 200 n. 202 Lateward v. Carling, 347 Lavabru V. Walter, 193 V. Wilson, 19, 182,185, 188 Law V. Goddard, 45, 287, 299 V. llollingsworth, 115,127 Lawrence v. Aberdeen, 287, 300 V. New York Ins. Co. 375, 377 V. Ocean Ins. Co. 220, 498, 503 V. Sebor, 60, 62, 64, 444 V. Sydebotham, 198, 209 V. Vanhorne, 60, 64, 94, 452, 482 Lcatham v. Terry, 476 Leavenworth v. Delafield, 341, 350, 355, 358, 459, 479 Le Chcnn'nant v. Pearson, 34, 123, 329, 482 Le Cras V. Hughes, 48 Lee v. Beach, 113,116 LIST OF CASES CITED. r>45 Lee V. Boardman, 421, 457, 460 V. Gray, 197, 212, 265 V. Massachusetls F. & M. las. Co. 60 Leevin v. Cormac, 34 Leigh V. Mather, 171 Le Mesurier v. Vaughan, 66 Lenox v. United Ins. Co. 332, 333, 36U Lepepre v. Farr, 40 Le Roy v. Governeur, 490 V. United Ins, Co. 322 Lelhulier's Case, 14, 135 Lever v. Fletcher, 88, 279 Levy V. Allnut, 298 V. Vauffhan, ' 298 Lewen v. Suasso, 230, 240 V. Ruckcr, 305, 313, 320, 375 V. Thatcher, 125 Lilly V. Ewer, 135 Liotard v. Graves, 152 Littledale v. Kenyon, 99 Livermore v. Newburyport Marine Ins. Company, 444, 446 Livie V. Janson, 285, 287, 329, 482 Livingston v. Col. Ins. Co. 53, 428, 480 V. Delafield, 81, 98 V. Hastie, 437, 452 v. Maryland Ins. Co. 84, 87, 140, 141, 279 V. Same, 136, 446 Locke V. N. American Ins. Co. 41, 64, 73, 94 Lockyer v. Offlev, 28, 230, 291 Long V. Allen, 19, 507, 513 V. Duff 93, 134 V. Bolton, 93, 134 Loomis V. Shaw, 47, 376 n. 431 Lopes V. Winter, 340 Loraine v. Thomlinson, 503 Lord V. Dall, 39, 57 Lothian v. Henderson, 125, 230 LoAv V.Davy, 175,412 Lowry v. Bourdieu, 515 Lubbock V. Potts, 518 V. Rowcroft, 262 Lucena v. Craufurd, 1, 27, 28, 40, 48, 49, 50, 58, 70 Ludlow V. Bowne, 136 v. Columbian Ins. Co. 229, 412, 414 Lukev. Lyde, 474 Lutwidge v. Grey, 373 Lynch V. Dalzell, 11 V. Dunsford, 111 V.Hamilton, 94, 111 M. Maans v. Weldon, 524 M' Andrews v. Bell, 41, 98 V. Vaughan, 288 MUrthy v. Abel, 386, 455, 476 M'Bride v. Mar. Ins. Co. 159, 330, 353, 370, 374,421,483 M'Call V. Marine Ins. Co. 276 M'Connellv. Hector, 20 M'Culloch V. Eagle Ins, Co. _ 6 M'Dougle V. Roy. Ex, Ass. Co. ' 484 M'Dowall V. Eraser, 81, 105 McGregor v. Ins. Co. of Pennsylvania, 483 70 M'Intire v. Bowne, 210, 286, 449, 499 M'lver V. Henderson, 457 Mackay v. Rhinelander, 100 Mackenzie v. Shedden, 52, 54, 177 Mackie v. Pleasants, 126 MMvim v. Phoenix Ins. Co. 309, 325, 327 M'Lellau v. Maine F, &; M, Ins. Co. 144, 146, 500 M'Masters v. Shoolbred, 421 M'Nair v. Coulter, 306 Maffgrath v. Church, 334, 353, 360, 362, 416, 490 Mallough V. Barber, 522 Manly v. United M, & F, Ins, Co. 13, 162 Mann v. P"'orester, 524 ManniuL, v. Gist, 135 V. Newnham, 395,413,425,489 Mansfield v, Maitland, 55 Marcardier v. Chesapeake Ins. Co. 238, 240, 242, 414, 416, 488 March v. Pigoti, 163 The Maria, 140, 147 Marine Ins. Co, v. Hodgson, 306 V, United Ins, Co, 480 Marine Ins. Co. of Alexandria V.Tucker, 221,400,503 V.Wilson, 155,514 Marsden v. Reid, 5, 84, 186 Marsh v, Robinson, 36 Marshall v. Delaware Ins. Co. 421, 437 V. Parker, 306 v. Union Ins. Co. 101,110 Martin v, Crockatt, 383 V. Delaware Ins. Co. 184 V, Salem Marine Ins, Co. 177, 352 V, Sitwell, 503 Maryland Ins. Co, v. Woods, 120, 152 Mason v. Ship Blaireau 199, 461 V. Skurray, 16, 107, 487 Masters v. Miller, 12 Matthia v. Potts, 176 Maury v. Shedden, 159 Mavor v. Simeon, 77 Maxwell v. Robinson, 171 May v, Christie, 500 Maydhew v, Scott, 297 Mayo V. Maine F. & M. Ins, Co. 312, 374 Mellick V. Peterson, 79 Mellish V. Allnutt, 165, 168 V. Andrews, 385, 443 V. Staniforth, 297 The Mercurius, 39, 148, 149 Meretony V, Dunlop, 291 The Merrimack, 31 Merry v. Prince, 12, 74 Mestaer v, Gillipsie, 54 Metcalfe v. Parry, 189, 200 Meyer v. Grcgson, 507, 511 Meyne v. Walter, 101 Middlewood v. Blakes, 95, 107, 112, 185, 216, 223 Miller v, De Peyster, 469 Milles V. Fletcher, 399, 406 Mills V. Roebuck, 117 Milward v. Hallett, 423 Miner v. Tagart, 306, 521 546 LIST OF CASES CITED. Minett v. Anderson, 292 V. Forrester, 78 Mintuni V. Columbian Ins. Co. 309, 312, 327 Mitchell V. Edie, 383,441, 446,468 Moir V. Roy. Ex. Ass. Co. 134 Mollison V. Staples, 40 Montgomery v. United States Ins. Co. 444 V. E^gington, 52, 317 Moody V. Surridge, 487 Moore r. Morgue, 522 Morck V. Abel, 35, 517 Moreau v. United States Ins. Co. 490 Morgan v. Oswald, 34 V. Mather, 5 Morris v. Summerl, 521 Morrison v. Parsons, 474 Moses V. Columbian Ins. Co. 414, 415 V. Delaware Ins. Co. 103 V. Pratt, 54, 503 Moss V. Byrom, 205, 232 Motteux V. Lond.Ass. Co. 13, 116, 165, 194 Mount V. Waite, 39, 40 Moxon V. Atkins, 16 Muir T. United Ins. Co. 379, 441 Muller V. Thompson, 32, 126 Mullett V. Shedden, 385, 446 Mumford v. Church, 437 V. Commercial Ins. Co. 289 V. Hallett, 15, 18, 47, 70, 319, 432 V. Phosnix Ins. Co. 294 Munroe v. Vaudam, 117 Munson v. N. England Mar. Ins. Co. 458, 498 Murdock v. Potts, 72 Alurgatroid v. Crawford, 85 Murray V. Alsop, 110 V. Columbian Ins, Co. 42, 62, 64, 70, 164, 167 V. Hatch, 448, 492 V. Ins. Co. of Pennsylvania, 309 V. United Ins. Co. 102, 125, 136, 437, 514 N. Nantes v. Thompson, 259 Neilson v. Columbian Ins. Co. 193, 488 V. De La Cour, 171 The Neptunus, 37, 149, 150, 225 Nereide, 25, 147 Nesbitt V. Lushington, 258, 259, 340, 484 Newburyport Mar. Ins. Co. v. Oliver, 500 Newby v. Read, 250, 384 Newcastle Fire Insurance Co. v. Mac- morran, 106, 125, 128 Newman v. Cazalet, 17, 367 New York Ins. Co. v. Robinson, 44, 433 V. Thomas, 18, 505 New York Firemen Ins. Co. v. Lawrence, 174, 220 V. Walden, 85 Nicol V. Goodall, 50 Nicklcs V. Maine F. & M. Ins. Co. 37 1 Noble V. Kf-nnoway, 16, IC, 176, 18 1 Nonncn v. ileid, 167 V. Kettlewell, I(;7 Norris v. Ins. Co. of North America, !* Null v. iiourdieu, 237 O. The Ocean, I'A) The Odin, 39 Odlin v. Insurance Co. of Pennsylvania, 159, 260, 421 Ogden V. Ash, 156 V. Barker, 35 V. Columbian Ins. Co. 312 V. N. Y. Firem. Ins. Co. 159, 453, 512 Olden V. M'Chesney, 149, 150 Oldham v. Bewick, 10 Oliver V. Cowley, 113 V. Greene, 51, 64, 73, 94 V. Maryland Ins. Co. 195 v.'NewburyportMar. Ins. Co. 421, 422 Olivera v. Union Ins. Co. 149, 260, 272, 276 Oliverson v. Loughnan, 116 Oom v. Bruce, 515 V. Taylor, 297 O'Reilly V. Gonne, 210 V. Roy. Ex. Ass. Co. 211 Oswell V. Vigne, 141 Ongier v. Jennings, 89, 183 P. Padelford v. Boardman, 348 Page v. Fry, 62 V.Thompson, 159 Payne v. Hutchinson, 163 Parage v. Dale, 400 Park V. Hammond, 163, 523 Parker V. Beaslie, 78 V. Jones, 277 V. Marine Ins. Co. 46 V. Potts, 116 V. Smith, 78 V. Towers, 254, 519 Parkin v. Dick, 32, 35 V. Tunno, 263 Parkinson v. Collier, 17, 176, 191 Parmenter V. Cousins, 116,164 Parmeter v. Todhunter, 407, 424, 447, 448 Parr v. Anderson, 17, 206 Parsons v. Mass. F. & M. Ins. Co. 178 V. Scott, 437 Patrick v. Commercial Ins. Co. 284, 288, 299, 394 V. Eames, 54 V. Hallett, 117 V. Ludlow, 165, 195 Patterson v. Mack, 292 V. Ritchie, 456 Pawson V. Barnevelt, 9, 18 v. Watson, 81, 83, 84, 109, 127, 521 Peele v. Merchants' Ins. Co. 329, 371, 392, 394, 400, 402, 403, 404, 405, 406, 450, 451, 453,457,472 Pearson v. Lord, 61 Peisch V. Ware, 461 Pelly V. Roy. Ex. Ass. Co. 178, 180, 195 Pcnniman v. Tuckir, 513 Penny v. New York Insurance Co. 350, 351, 353, 437 Pcnsacks v. Fouks, 78 I'fpchard v. Whitmorc, 62 Perkins v. N. England Marine Ins. Co. 35 282, 326 Peters v. Delaware Ins. Co. 326 V. Milligan, 3G4 LIST OF CASES CITED. 147 Peters v. Phoenix Ins. Co. 117, 284, 400, 480 Phelps V. Auldjo, 197 Phillips V. Barker, 282 V. Champion, 174 The Phoenix, 138 Phoenix Ins. Co. v. Pratt, 141 Phyn v. Roy. Ex. Ass, Co. 223, 227, 233 Pickering v. Dowson, 107 Pieschell v. Allnutt, 31 Pipon V. Cope, 28, 236 Planche v. Hetcher, 19, 93,248 Plantamour V. Staples, 117, 160, 182 The Planters Wench, 34 Pleasants v. Marine Ins. Co. 309, 327, 460 Plummer v. Wildman, 253, 345 Pole V. Titzgerald, 266, 390, 391, 396 Pollock V. Babcock, C7, 279 V. Donaldson, 75, 504, 509 Pond V. King, 390 Popleston V," Kitchen, 104 Porter v. Bussey, 513 The Portland, 138 Post V. Phoenix Ins. Co. 310 The Posten, 150 Potsdam, 149 Potter V. Marine Ins. Co. 327 Potts V. Bell, 19, 30 Power V. VVhitmore, 348, 368 Pratt V. Phoenix Ins. Co. 36, 41 Pray v. Edie, 58 The President, 24 Price V. Bell, 122 Pringle v, Harlle, 396 Pritchettv. lus. Co. of N. America, 39, 70 The Progress, 360 Puller V. Plover, , 390 V. Halliday, ' 64 V. Staniforth, 54, 321, 390, 466 Pugh V. Leeds, 163 Putnam v. Wood, 260 Q Queen v. Union Ins. Co. 396, 401, 421 R. Rabone v. Williams, 524 Radcliff V. United Ins. Co. 148, 149, 296 Raine v. Bell, 200, n. 201 Ralston v. Un. Ins. Co. 400, 421, 448 Randall, v. Cockran, 466 Randolph v. Ware, 520 The Ranger, 37, 39 Rapid, 30, 32 Ralcliffe v. Shoolbred, 99 RawHnson v. Janson, 34 V. Hall, 501 Read v. Bonham, 411, 442, 443, 447 Reade V. Com. his. Co. 195,354 Redman v. Lowdon, 9, 10 Reed V. Darby, 412 Reid V. Harvey, 82 The Rendsborg, 138 Rhind v. Wilkinson, 27 Rhinelander v. Ins. Co. of Pennsylvania, 259,419,421 v.Juhel, 281,457 Rice V. Homer, 288, 388 Rich V. Parker, 127, 142 Richards v. Marine Ins. Co. 166 Richardson V. Anderson, 519, 520 v. London Ass. Co. 173 v. Maine Ins. Co. 120, 154, 174, 181, 212, 237, 260, 264, 277, 279 The Richmond, 37 Ricord v. Bettenham, 19 Riley v Delafield, 55, 73 V. Hartford Ins. Co. 52, 305, 317 Risdale v. Newnham, 133 The Ringende Jacob, 39 Ritchie v. United Ins. Co. 393, 405 Rising V. Burnet, 64 Roberts v. Fonnereau, 99 - Robertson v. Col. Ins. Co. 193, 388, 512 V. Ewer, 71, 352 V. French, 14, 18, 166 V. Hamilton, 45 V. Majoribanks, 428 V. United Ins. Co. 65, 301, 409, 504 Robinson v. Jones, 144, 226 V. Marine Ins. Co. 194,214 V. New York Ins. Co. 44 V. Tobin, 12, 18 V. Touray H, 34, 68, 310 Roche V. Thompson, 291 Ptoebuckv Hamilton, 39 Rogers V. Davis, 326 V. M'Arthy, 5 V. May lor, 601 Roget V. Thurston, 211, 299, 444 Roiil V. Parr, 251, 494 The Rolla, 148, 149 Rolleston v. Hibbcrt, 36 V. Smith, 36 Ross V. Eradshaw, 110 V. Hunter, 232, 240 V. Sloop Active, 345 V. Thwaite, 182 Rotch V. Edie, 33, 260 Rothwell V. Cooke, 507 Routh V. Thompson, 49, 50, 61, 65, 504, 519 Routlidge v. Burrell, 10, 125, 498 Rowcroft V. Dunsmore, 249 Ruan V. Gardner, 66 Rucker v. Conyngham, 302 V. London Ass. Co. 176 V. Ansley, 34 Rundle v. Moore, 523 Russel V. Union Ins. Co. 42, 44, 64 Russell V. De Grand, 32, 79 V. N. England Mar. Ins. Co. 58, 63 S. Sadler's Co. v. Badcock, 11 Sage v. Middletown Ins. Co. 173, 245, 349, 370 Saidler v. Church, 453 The St. Jose Indiano, 138 St. Lawrence, 26 Sally, 136, 137 Saloucei v. Johnson, 137,143 Saltus v. Commercial Ins. Co. 349 v. Ocean Ins. Co. 372, 413, 426, 488 548 LIST OF CASES CITED. Saltus V. United Ins. Co. Salvador v. Hopkins, Salvin v. James, Sanches v. Davenport, Sanderson v. Symonds, Sansom v. Ball The Sarah Christina, Saratoga, 31, 248, 269 17, 55, 183 170 522 13 54, 55, 74 37, 39 260, 463 Savage v. Pleasants, 270, 284, 295, 443, 446 Sawtell v. Loudon, 93 Sawyer v. Maine F. & M. Ins. Co. 281, 422 Schieffelin v. New York Ins. Co. 182, 227, 287, 372, 437, 459 Schmidt V. United Ins. Co. 260, 267 Schnakoneg v. Andrews, ^ 259 Schroeder v. Vaux, 34 Scott v. Bourdillion, 15, 487 v. Libbey, 260 T. Thompson, 212 Scriba v. Ins. Co. of N. America, 166 Seaman V. Fonnereau, 111 Searle v. Scovell, 290, 413 Sellar v. M' Vicar, 170 Seller v. Work, 163, 521 Seton V. Low, 69, 102, 280 V. Delaware Ins. Co. 278, 296, 418 Sewell V. Roy. Ex. Ass. Co. 35 Shapley v. Tappan, 174 Sharp V. Gladstone, 350, 477 Shaw v. Felton, 306, 313, 315 Shee v. Clarkson, 520 Shepherd v. Chewter 501 The Shepherdess, 149, 151 Sheriff v. Potts, 200 Shiffner v. Gordon, 34 Shirley v. Wilkinson, 81 Shoemaker v. Smith, 524 Shoolbred v. Nutt, 89 Sibbold V. Hill, 94 Siffkon v. Allnutt, 34, 55, 503, 516 V. Lee, 140 Silva v. Low, 115, 218 Simeon v. Bazelt, • 158, 160 Simond v. Boydell, 135, 511 Sims v. Gurney, 339, 344 Skidmore v. Desdoity, 38, 09, 154, 281, 282 Sleght V. Hartshorn, 139 V. Rhinclander, 15, 130, 139 S'ocum v. United Ins. Co. 437 Smith v. Bell, 402, 403 V. Cologan, 520, 522 V. Delaware Ins. Co. 293, 295 V. Lascelles, 41, 521 V. Newburyport Mar. Ins. Co. 443 V. Odlin, 5 V. Readshaw, 135 V. Robinson, 437, 450, 455 V. Scott, 250 V. Steinback, 218,383 V. Siirridtjf, 29,116,198 V. Toiiro, 471, 472 V. United Ins. Co. 273 V. Wright, 18, .332 Snell V. Delaware Ins. Co. .320 Snook V. Davidson, 520 Snowdcn v. I'liuunix Ins. Co. 144, 146 Soares v. Thornton, 225, 242 The Society for the Propagation of the Gospel V. Wheeler, 20, 26, 138 Solly V. Whitmore, 189 Somerville v. Somerville, 26 Spafford v. Dodge, 351, 357, 358, 363 Sparrow v. Carruthers, 176 Spencer v. Franco, 398 Sperry v. Delaware Ins. Co. 101 The Spes and The Irene, 150 Speyer v. New York Ins. Co. 16, 174, 349 Spitta V. Woodman, 156, 167 Splidt V. Bowles, 475 Staadt Embden, 32, 39 Stackpool V. SimojKl, 57, 84, 106 Stamma v. Brown, 231 Stanwood V. Rich, 114,115 Steel V. Lacy, 83, 123, 141, 502 Steinback v. Church, 504 V. Col. Ins. Co. 218, 444, 503 V. Ogden, 240 V. Rhinelander, 59, 61, 164, 504 jSteinmetz v. United States Ins. Co. 155 Stephens v. Beverly Ins. Co. 9, 172 The Stert, 150 Stetson v. Mass. M. F. Ins. Co. 27, 39, 41, 182, 223 Stevens v. Lynch, 502 V. Columbian Ins. Co. 324, 483 Stevenson v. Snow, 506, 513 Stewart v. Bell, 88 v. Dunlop, 80 V. Morrison, 104 Stirling v. Vaughan, 41, 50 Stitt V. Warden, 200 Slocker v. Harris, 190, 192, 199 V. Merrimack Ins. Co. 103, 121 Storer v. Gray, 42.2 Story V. Strettell, 421 Stott V. Vaughan, 215 Strong V. Nalally, 176 V. N. York Firemen Ins. Co. 360, 368 The Success, 138 Suckley v. Delafield, 109, 236 Sullivan v. Mass. Mutual Fire Ins. Co. 170 Suydam v. Marine Ins. Co. 198, 294, 380, 447, 448, 465 The Susa, 138 Syers v. Bridge, 206, 209 Symonds v. Union Ins. Co. 270, 480 T. Tabbs V. Bendelack, 25 Taggard v. Loriug, 242 Tait V.Levi, 114 'I'alcot V. Commercial Ina. Co. 92, 117,223 v. Marine Ins. Co. 498 Tarlton v. Slaniforth, 10, 11 Taskar v. Scott, 42 Tatbam v. Hodgson, 283 Taylor v. Curtis, 337 v. Lowell, 79, 116, 118, 130,503,523 v. Stunner, 505 V. Wilson, 55, 72, 95 v. Wo()dn('Ss, 135 Teniiant v. Henderson, 202 Thatcher v. Bellows, 155 LIST OF CASES CITED. 549 Thelluson v. Bewick, » 322 Thellusson v. Fergusson, 132, 160, 170, 215, 216 V. Fletcher, (Doug. 301.) 40 V. Fletcher, (1 Esp. 73.) 451 V. Staples, 130, 170 Thirty Hogsheads of Sugar v. Boyle, 32 Thomas v. Withers, 28 Thompson v. Donaldson, 163 V. Roy. Ex. Ass. Co. 302, 303, 490, 492 V. Buchanan, 80, 87 V. Charnock, 8 V. Taylor, 52, 54 V. llowcroft, 475 V. Whitmore, 249, 484 Thornely v. Hebson, 395 Thurston v. Koch, 326 Tidswell v. Angerstein, 41 Tierney v. Etherington, 14, 191 The Tobago, 46 Tom V. Smith, 387, 444 Tonge V. Watts, 51 Toppan V. Atkinson, 62, 64 Toulmin v. Anderson, 239 Touteng V. Hubbard, 161 Townson v. Guyon, 191 Tremenhere v. Trisilian, 409 Trott V.Wood, 18 Truscott V. Christie, 52 Tucker v. Juhel, 295 V. United F. & M. Ins. Co. 265 Tullock V. Boyd, 34 Tunno v. Edwards, 313, 383, 447, 4*1 Twemlow v. Oswin, 250, 384 The Two Catharines, 464 The Tutela, 150 TheTwee Juffrowen, 37 Tyrie v. Fletcher, 603, 508 U. Uhde V. V/ alters, 15 Underwood v. Robertson, 411 Union Ins. Co. v. Russell, 467 United Ins. Co. v. Robinson, 471, 519 V. Lenox, 479 V. Scott, 464, 472 United States v. The Anthony Margin, 28 V. Grundy, 28 V. The Paul Shearman, 35 Urquhart v. Barnard, 9, 204 Usher v. Noble, 320, 323, 375 Usparicha v. Noble, 21, 34 V. Vallance v. Dewar, 89, 183, 248 Vallejo V. Wheeler, 113 n. 210, 230, 240, 286 Vandenheuvel v. Church, 83, 110, 128 V. Unit. Ins. Co. 83, 125, 153 227,341,415,416 Vandervoort v. Smith, 9, 18, 117, 154, 171 Vandyck v. Hewitt, 517 Vandyke v. Whitmore, 34 Vanharthals v. Halhed, 34 Vasse V. Ball, 138 The Venus, 22, 23, 24 Verdon v. Wilmot, 135 Vezian v. Grant, 132, 134 Victorin v. Cleeve, 135 The Vigilantia, 139, 144 Violett V. AUnutt, 203 The Virginia, 26 Vos V. Robinson, 499 V. United Ins. Co. 152, 235, 514 Vredenburgh v. Gracie, 166 The Vreede Scholtys, 33 Vriendschap, 26, 31 Vrow Barbara, 150 Vrow Catharina, 138 Vrow Cornelia, 34 Vrow Elizabeth, 33, 138 Vrow Johanna, 149 Vrow Judith, 148, 149 W. Waddellv. Columbian Ins.Co. 341, 401, 415 Waddington v. United Ins. Co. 504 Wainhouse v. Cowie, 34 Wake V. Atty, 97 Wakefield v. Martin, 11 Walden v. Le R,oy, 345, 349 V. New York Firemen Ins. Co. 10, 80, 92, 107, 114 V. Phoenix Ins. Co. 159, 452 Walker v. Maitland, 56, 229 Wallace v. Tellfair, 521, 522 Walpole V. Ewer, 301, 367 Waltham v. Thompson, 135 Waples V. Eames, 175 Ward V. Wood, 177, 209 Warder v. Horton, 27, 326 V. Goods saved, 409 Warren v. United Ins. Co. 113 Warwick v. Scott, 10, 135 Watchorn v. Langford, 69 Watson v. Clark, 117 V. Delafield, 90 V. Ins. Co. of N. America, 154, 309, 384, 447, 449 V. Mar. Ins. Co. 351, 482 Watt V. Morris, 113 Way V. Modigliani, 216 Waymell v. Reed, 517 Webb v. Thompson, 135 Webster v. DeTastet, 40, 521 V. Foster, 98 Wedderburne V. Bell, 114 Weir V. Aberdeen, 116, 119 Welles V. Gray, 341 Wells V. Williams, 20 The Welvaart Van Pillaw^ 144 Wendover v. Hogeboom, 36 Western v. Wildy, 223 "Weston v. Ernes, 9, 10 Westwood V. Bell, 524 Wharton v. De La Rive, 40, 515 Wheatland v. Gray, 264 Whitehead v. Bance, 390 Wkitney v. Haven, 9, 195 V. N. York Firemen Ins. Co. 290, 411 Whitteridge v. Norris, 335 Wiggin v. Amory, 194, 205, 207, 232 350 LIST OF CASES CITED. Wiggln V. Boardman, Wilcocks V. Union Ins. Co. 10, 205, 207 145, 146, 230 n. 236 113, 114 28 623 521 98, 110 100 "Wilkie V. Geddes, Wilkins v. Despard, "Wilkinson v. Clay, V. Cowerdale, Willes V. Glover, Williams v. Delafield, V. London Ass. Co. 345, 353, 360 V. Marshall, 34, 133 V. Smith, 4, 43, 64, 65, 148, 152, 284, 326, 389, 461 V. Stedman, 223 Wilman v. Gray, 421 Wilmer v. The Smilax, 301, 302 Wilson V. Dacket, 82 V. Foster, 423 V. Marryatt, 35 V. Millar, ' 409 V. Royal Ex. Ass. Co. 55, 413, 490 V. Smith, 484 Wilson V. United Ins. Co. 300 Wilton V. Reaston, 58 Winthrop v. Union Ins. Co. 194 Wittingham v. Thornborough, 40, 82 The Wolfarth, 34 Wolf V. Horncastle, 44,58,519 Wood V. Lincoln Si, Kennebeck Ins. Co. 394, ' 400, 401, 405 V. N. England Mar. Ins. Co. 170, 278, 296 V. Worsley, 10, 157 Wooldridge v. Boydell, 215, 216 Woolf V. Claggett, 114, 194 Woolmer v. Muilman, 127 Worsley V. Wood, 10, 125, 157 Wright V. Shiffner, 133 V. Welbie, 32 Y. Yallop Ex parte, 36, 41 Yeaton v. Fry, 296 The Zelder Rust, 36 THE END.