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Insurance Marine Policies (a).

Claim under Policy for Total Loss, Particular and General On a ma

Average Losses, and Expenses under Suing and Labouring for a total
Clause.

loss, aver

age losses, 1. The plaintiffs are a firm of shipowners carrying on business or under

the suing in the City of London, and were the managers and owners of a or labour

ing clause.

@) Marine insurance is a contract by which the insurers, called underwriters, undertake, in consideration of a certain sum of money called the premium, to indemnify the assured against any loss which he may actually sustain, not exceeding a specified sum, upon ship, goods, or freight, as the case may be, either during a certain voyage or for a certain time. In the former case the policy is called a voyage policy ; in the latter, a time policy. The party entering into a contract of The inmarine insurance must have some bona fide pecuniary interest in the sured must subject-matter of insurance. He must have what is called an insurable have a interest, and this interest must exist not only at the time of entering pecuniary into the policy but also at the time of the loss. Marine insurance is a interest. contract of indemnity merely; and it follows from this, that if the assured

Marine never had any interest in the subject-matter of insurance, or if his interest

insurance, did not continue till the loss happened, he sustains no injury by the

a contract happening of the loss, and there is nothing for which to indemnify him.

of indemAnother result which follows from the doctrine that the assured must

nity. have an insurable interest is this. He can only recover from the underwriters to the extent of his insurable interest. It may be that in conse- Consequence of insuring with a number of underwriters the total amount written

quences of on the aggregate of the policies he holds is in excess of the value of the this. subject matter of insurance, but this will be no advantage to the assured. He must not make a profit out of the common misfortune of the underwriters and himself; and he can only recover against any one or all of the underwriters the actual loss he has suffered. He is not, however, bound to apportion the loss among the different underwriters, and can proceed against one of them and recover the total amount from him, provided he has underwritten the policy to that amount. In that case it will be for the underwriter who has had to pay all the loss to come upon the other underwriters who have insured the same risk for contribution.

Insurable interest.]-In the statement of claim it is necessary ex. What conpressly to aver the fact of the plaintiff's interest in the ship, goods, or stitutes an freight insured, and the averment must be that the plaintiff was interested insurable at the time of the making of the contract (except, of course, where an interest. assignee of a policy is suing, then an allegation of the assignor's interest at the time will do), and also at the happening of the loss. Ship-owners have an insurable interest in their ship. Upon the principle already stated, where they assign away their interest in the ship before the loss, they cannot recover except as trustees for the assignee, and this only when there has been an agreement that the policy should be kept alive for the benefit of the latter (Powles v. Innes, 11 M. & W. 10); but an assignment by way of mortgage, though in terms absolute, will not prevent the assured from recovering. (Ward v. Beck, 13 C. B. N. S. 668 ; L. J. 32 C. P. 113.) A person who lends money for the repair of a ship has no insurable interest in it, and an hypothecation of a ship by a master gives no insurable interest to the creditor. (Stainbank v. Shepard, 13 C. B. 418 ; L. J. 22 Ex. 341.) A mere equitable interest in goods is an insurable

On a ma

vessel called the “ St. James ;” and the defendant is an underrine policy writer carrying on business in Liverpool. for total loss, &c.

2. On or about the day of — 1877, the plaintiffs

What con

one (IIill v. Secretan, 1 B. & P. 315); and a lien on goods is insurable. stitutes an

(Briggs v. Merchant Traders' Insurance Ass., 13 Q. B. 167.) The interest insurable

of a shipowner on the profit expected from carrying his own goods is prointerest.

perly described and insured as freight. (Flint v. Flemyng, 1 B. & Ad 15 ; Decaux v. l'Anson, 5 N. C. 519.) The assignee of a policy stands upon the interest which his assignor had at the inception of the risk, and his own interest at the time of the loss.

Beginning and end of the risk.]—This differs whether the policy is a time or a voyage policy. If the former, the risk begins at the first date and ends with the last date, and the underwriters are only liable if the

loss happens on or between these dates. In the case of a voyage policy, When the the risk begins when the insurance is on a voyage “ at and from," as risk begins soon as the ship is geographically within the port (Haughton v. Empire and when

Marine Insur. Co., L. R. 1 Ex. 206); or, at the beginning of the voyage it ends. when the insurance is " from” the port. (Small v. Gibson, 16 Q. B. 156;

L. J. 20 Q. B. 152, Ex. Ch.) The risk in the case of a voyage policy on the ship terminates in general at the end of twenty-four hours after mooring in safety in port, but where during the twenty-four hours the ship is compelled to go back for performance of quarantine, the risk continues. (Waples v. Eames, 2 Str. 1243.) In the case of goods, the risk depends on the agreement of the parties, but it usually begins with the loading on board, and ends with the safe discharge, including their passage to the shore by usual means. (Twiney v. Etherington, i Burr. 348.) The risk on insurance of freight begins when the goods or part are on board, or the ship is at the port of loading in a condition to take them on board. (Foley v. United Fire, f'c., Insur. Co., L. R. 5 C. P. 155 ; Jones v. Neptune Marine Insur. Co., L. R. 7 Q. B. 702.

The loss.] There must be an averment that there was a loss of part or all the subject matter of insurance by the perils insured against. These perils are enumerated in the particular policy ; but the usual

perils insured against in marine policies are all perils of the sea, loss by Usual

fire, by capture, loss by restraint of princes, loss by barratry, and losses

then follow general words “all other perils, losses, and misfortunes ; covered. but on the principle that general words of the kind are to be taken as

ejusdem generis with those that have gone before, these words only refer

to perils, losses, and misfortunes of a like nature to those already eng. Effect of merated. If the insurance is with the words “ lost or not lost," it will “ lost or attach, although the subject matter had been in fact lost at sea at the not lost." time of insurance, provided the party insured was then ignorant of

the loss. (3 Kent Com. 258, 259 ; Mead v. Davieson, 3 Ad. & E. 303.) In determining whether a particular loss is within the perils insured against, the proximate and not the remote cause of loss is to be regarded. But where the insurance is against perils of the sea, and mischief is occasioned by the sea, the natural and unavoidable consequence of which is to cause a farther mischief, the consequential injury also is a peril of the sea, as where the sea-water damages part of a cargo, which thereby becomes putrid so as to injure another part of the cargo

in contact with it. (Montoya v. London Assur. Co., 6 Exch. 451 ; L. J. What are

20 Ex. 254.) A loss by perils of the sea, thougb remotely caused by the "perils of

negligence of the crew, is within the policy. (Walker v. Maitland. the sea."

5 B. & A. 171 ; Bishop v. Pentland, 7 B. & C. 219.) So a loss occasioned by the mistake of the master, provided he was a person of competent skill when the policy was effected. (Phillips v. Headlam, 2 B. & Ad. 380.) So though the ship was damaged by negligent loading, and

effected with the defendant a policy of marine insurance in the On a maordinary form for £1000, which the defendant subscribed for rine policy £50, at a premium of 7 guineas per centum, and became and loss, &c.

for total

supposed

became leaky, and was run ashore to prevent sinking. (Redman v. “Perils of Wilson, 14 M. & W. 476.) A ship never heard of after sailing is pre- the sea.” sumed to have foundered at sea. (Green v. Brown, 2 Str. 1199.) It is

When a sufficient to prove that the ship has not been heard of in the country ship never from which she sailed, without calling witnesses from the port of desti

heard of is nation to prove that she never arrived there. (Twemlow v. Osvin, 2 Camp. 85.) The time within which a missing ship will be presumed

to have lost must depend on the circumstances of the case ; and in Houstman

foundered. v. Thornton, Holt. N. P. 242, a ship which had sailed on a seven weeks' voyage, and had not been heard of for eight or nine months, was presumed to be lost. Though a ship is burned by the negligence of the master and mariners, this is a loss by fire within the policy for which the underwriters are liable (Busk v. R. Exch. Assur. Co., 2 B. & A. 73); but on an insurance of goods, if the goods are burnt in consequence of being pat on board in bad condition, this being occasioned by the insurer's own act, would not be a loss by fire within the policy. (Boyd v. Dubois, 3 Camp. 133.) As to what amounts to a loss by restraint of princes, see Aubert v. Gray, L. J. 32 Q. B. 50; Bruce v. Nicopulo, 11 Exch. 129; L. J. 24 Ex. 321 ; Rodocanachi v. Elliott, L. R. 8 C. P. 649, and in Ex. Ch. L. R. 9 C. P. 518 ; Geipel v. Smith, L. R. 7 Q. B. 404. There is usually a memorandum on marine policies protecting the insurer from claims for loss on certain articles, or from liability to particular average " unless the ship be stranded ;” and in a great number of cases there has been a keen contest as to what constitutes a What constranding. The fact that the ship struck or took the ground is not stitutes a enough; she must be stationary for some little time, as twenty minutes. stranding. (Baker v. Torry, 1 Stark. 436.) A stranding,” said an eminent judge, “ may be said to take place where a ship takes the ground not in the ordinary course of navigation, but by reason of some unforeseen accident. (Bishop v. Pentland, 7 B. & C. 219.) If therefore the ship takes the ground in the ordinary and usual course of navigation and management in a tidal river or harbour, upon the ebbing of the tide or natural deficiency of water, so that she may float again upon the flow of the tide or increase of water, such an event is not a stranding." (Per Lord Tenterden, in Wells v. IIoprood, 3 B. & Ad. 34.) If however there be a stranding, and the goods were on board at the time, the policy applies, though the loss or injury to the goods was not caused by the stranding, but by some other cause. (Ibid.) A loss may be total or partial ; and a Losses total loss may be either actual or constructive. A total loss is where the divided subject-matter of insurance is either totally destroyed or is so damaged into total as to be worthless, and the adventure is thereby totally frustrated. and par(Roux v. Salvader, 3 N. C. 266.) A constructive total loss is where the tial; and thing insured, though still existing in fact, is lost for all useful purposes, total into so as to justify the insured in abandoning all his interest in it to the actual or insurer, and claiming as for a total loss. (See Roux v. Salrader, supra; construcNaylor v. Taylor, 9 B. & C. 718 ; IIoldsworth v. Wise, 7 B. & C. 794.) tive. Notice of abandonment must be given to the underwriters. It need not

Notice of be in writing, but it must be certain, it must be unconditional and

abandonunqualified (Mc Masters v. Shoolbred, 1 Esp. 239); and it must be given

ment. as soon as possible. (IIunt v. R. Exch. Assurance Co., 5 M. & S. 47.) Where the loss is total, that is to say where the ship is lost, or destroyed, or captured, or reduced to a mere wreck, or congeries of planks, so as to exist as a ship for no useful purpose (Farnworth v. Hyde, 18 C. B. N. S. 835; L. J. 34 C. P. 207 ; Cambridge v. Anderton, 2 B.

On a ma

was an insurer thereon to the plaintiffs for the said sum of £50 rine policy for the ship “St. James," valued at £10,000, lost or not lost, for total

at and from N. to a rice port in the bay of Bengal while there,

loss, &c.

& C. 691), then it is not necessary to give notice of abandonment. As to what amounts to a total loss of freight, see Potter v. Rankin, L. R.

6 H. L. 83; Allison v. Bristol Marine Insur, Co., L, R. 9 C. P. 559. When

Calculation of the loss.]—Where the policy is a valued one—the esti. policy

mated value of the subject matter of insurance stated on the face of itvalued and and the loss is total, there is no difficulty about calculating the loss, and loss total,

the assured is only bound to prove some interest in the ship or goods, in how loss

order to take the case out of the statute 19 Geo. 2, c. 37; for ever since calculated. that statute, the usage has been to permit the valuation fixed on the

policy to stand, unless the defendant can show that the plaintiff had a

colourable interest only, or that he has greatly overvalued the goods. When loss

If the loss is partial, though the policy be valued, the plaintiff is bound partial to prove the value of the goods in the same way as if the policy were an though

open one. (Irving v. Manning, 1 H. L. C. 287.) The rule in the case of policy an open policy is to estimate the actual value of the subject insured at valued. its actual or market value at the commencement of the risk ; and if the When claim be for repairs of a ship, the full cost of repairs will not be allowed, policy because the owner substitutes new for old materials. (Poingdestre v. open. R. Exch. Assur. Co., Ry. & M. 378.). A deduction of one-third new for

old, as it is called, will be made, unless the ship is on her first voyage.

(Pirie v. Steele, 2 M. & Rob. 49; or perhaps if she is an iron ship; The deduc. Lidgett v. Scretan, L. R. 6 C. P. 616, 627.). "It must be noticed, how. tion of new

ever, that besides the amount actually subscribed for by the underwriters, for old. they may become liable

for average losses, and, under the suing and labouring clause, for moneys expended in and about the attempting to save or recover the subject insured, if properly claimed in the statement of claim. (Le Cheminant v. Pearson, 4 Taunt. 367.)

Warranties.] --There are in the case of all policies of marine insurance certain warranties by the assured, some express, others implied. These warranties are in the nature of conditions precedent; but as only a general

performance of all such conditions is usually averred in the statement of A strict claim, the particular warranty, the breach of which is relied on, must be compliance specially pleaded as a defence in the statement of defence. Where the with ex- policy contains an express warranty, a literal and strict compliance with press war- it must be proved, and it is not sufficient to show something tantamount ranties to a performance of it, unless it be a waiver or dispensation of performmust be ance; and in that case it must be specially pleaded as such, and not as averred. a compliance. (Weir v. Aberdeen, 2 B. & A. 320 ; Croockewit v. Fletcher,

1 H. & N. 893, L. J. 26 Ex. 153.) The chief implied warranties are that

there shall be no deviation from the voyage insured, and that the ship Implied (in the case of a voyage policy) is seaworthy at the commencement of warranties the risk ; and a breach of one or other of these warranties avoids the of seawor. policy, although there has been no fraud. Any deviation from the voyage thiness and insured is fatal, although no loss happens in consequence of the deviaagainst tion, and although the loss in respect of which the underwriters are deviation. sought to be made liable did not occur till after the vessel had returned

to the regular course of the voyage. A deviation does not discharge the

insurer from liability for previous loss, but only for loss accruing after What is a the deviation. (Green v. Young, 2 Lord Raym. 840.) All deviations by deviation. reason of inevitable accident or stress of weather, to obtain needful pro

visions or to do needful repairs, or avoid capture, are implied exceptions to this warranty (Urquhart v. Barnard, 1 Taunt. 456); but it is a question whether a deviation for the purpose of helping a vessel in distress is allowable or not. (See Laurance v. Sydebottom, 6 East, 54; The Jane,

and thence to a port of discharge in the United Kingdom, with On a maleave to call at a port for orders, and for thirty days while in port rine policy after arrival. And it was agreed that deviation of voyage should loss, &c.

2 Hagg. Am. Rep. 345 ; 3 Kent Com. 313.) With respect to the What conimplied warranty of seaworthiness it is meant that the ship shall be in a stitutes fit state as to repairs, equipment, and crew, and in all other respects to unseaworencounter the ordinary perils of the voyage insured at the time of thiness. sailing on it. But the assured makes no warranty that the vessel shall continue seaworthy, or that the master or crew will do their duty during the voyage ; and their negligence or misconduct is no defence to an action on the policy where the loss has been immediately occasioned by the perils insured against. (Dixon v. Sadler, 5 M. & W. 414.) Where a ship is unseaworthy when she sails on her voyage, the policy is there and then avoided, and it is not set up again by her becoming seaworthy during the course of the voyage. (Quebec Marine Insu. Co. v. Commercial Bank of Canada, L. R. 3 P. C. 234.) Not only does the Owner of ship-owner warrant that his ship is seaworthy, but the owner of goods insured the subject of insurance loaded on board ship, warrants that the ship goods waris seaworthy (Biccard v. Shepherd, 14 Moo. P. C. 494); and if the ship rants the turns out to have been unseaworthy, the owner of the goods cannot recover ship is sea-against the underwriters. There is, however, no implied warranty as to worthy. the goods themselves that they are seaworthy for the voyage. (Koebel v. Saunders, 17 C. B. N. S. 71 ; L. J. 33 C. P.310.) It has now been finally settled that this rule requiring seaworthiness at the commencement of the risk only applies to royage policies. In the case of time policies there is In time no implied warranty of seaworthiness. (Dudgeon v. Pembroke, 46 L. J. policies no (H. L.) 409.)

implied Defences-Concealment.]-If the assured conceals any material fact warranty which relates to the risk insured, the policy is void (Carter v. Boehm, 3 of seaworBurr, 1905; Russell v. Thornton, 6 H. & N. 140); and it makes no thiness. matter though the fact were once known to the underwriter, if it was not present to his mind at the time of effecting the insurance. (Bates v. Hewett, L. R. 2 Q. B. 595.) The assured is bound to communicate all The asthe information he has received, though he does not know it to be true,

sured and though it afterwards turns out to be false. It is important to notice, bound to however, that by mercantile usage the signing of the slip, not the de communi. livery out of the policy, is the making of the contract. Hence it is cate all only facts known to the assured at the former time that he is bound to

material communicate ; and anything coming to his knowledge before the delivery

facts. out of the policy, though after the signing of the slip, he is not compelled to disclose. (Lishman v. N. Maritime Insur. Co., L. R. 8 C.P.216; aff. in Ex. Ch. L. R. 10 C. P. 179. See also on this subject, Morrison v. Universal Marine Insur. Co., L. R. 8 Ex. 197; Lynch v. Hamilton, 3 Taunt. 37). It is sufficient to communicate facts without the opinion or conclusions founded upon those facts. (Bell v. Bell, 2 Camp. 479.) Mere But not rumours or news in the public papers need not be communicated (3 rumours, Kent Com. 285), nor need facts which the underwriter is presumed to nor opinknow, as that a ship classed A 1 at Lloyd's will be struck off the list ions and unless re-surveyed in the fourth year from the registration. (Gandy concluV. Adelaide Marine Insur. Co., L. R. 6 Q. B. 746.)

sions, &c. Misrepresentation.]-Any misrepresentation of a material fact by the assured to the underwriters at the time of entering into the contract avoids the policy; and any misrepresentation made to the first of the underwriters is regarded as made to them all. (Marsden v. Reid, 3 Any mateEast, 572; Bell v. Carstairs, 2 Camp. 543.) A material misrepresenta- rial misretion will vitiate the policy, though the actual loss is in no way presenta: connected with the misrepresentation, and though no fraud was in. tion avoids

the policy.

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