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On a ma

rine policy

for total

loss, &c.

When policy valued and loss total, how loss

When loss

partial though

was an insurer thereon to the plaintiffs for the said sum of £50 for the ship "St. James," valued at £10,000, lost or not lost, at and from N. to a rice port in the bay of Bengal while there,

& 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. Calculation of the loss.]-Where the policy is a valued one-the esti mated value of the subject-matter of insurance stated on the face of itand the loss is total, there is no difficulty about calculating the loss, and the assured is only bound to prove some interest in the ship or goods, in 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. If the loss is partial, though the policy be valued, the plaintiff is bound to prove the value of the goods in the same way as if the policy were an open one. (Irving v. Manning, 1 H. L. C. 287.) The rule in the case of an open policy is to estimate the actual value of the subject insured at its actual or market value at the commencement of the risk; and if the claim be for repairs of a ship, the full cost of repairs will not be allowed, because the owner substitutes new for old materials. (Poingdestre v. 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; Lidgett v. Seretan, L. R. 6 C. P. 616, 627.) It must be noticed, however, that besides the amount actually subscribed for by the underwriters, 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.)

policy valued. When policy

open.

The deduc. tion of new

for old.

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 expolicy 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 (in the case of a voyage policy) is seaworthy at the commencement of the risk; and a breach of one or other of these warranties avoids the policy, although there has been no fraud. Any deviation from the voyage insured is fatal, although no loss happens in consequence of the deviation, and although the loss in respect of which the underwriters are 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 the deviation. (Green v. Young, 2 Lord Raym. 840.) All deviations by reason of inevitable accident or stress of weather, to obtain needful provisions 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,

Implied warranties of seawor thiness and against deviation.

What is a deviation.

and thence to a port of discharge in the United Kingdom, with leave to call at a port for orders, and for thirty days while in port after arrival. And it was agreed that deviation of voyage should

On a marine policy loss, &c.

for total

What con

Owner of insured goods warrants the ship is sea-' worthy.

In time policies no implied

2 Hagg. Am. Rep. 345; 3 Kent Com. 313.) With respect to the implied 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 ship-owner warrant that his ship is seaworthy, but the owner of goods the subject of insurance loaded on board ship, warrants that the ship is seaworthy (Biccard v. Shepherd, 14 Moo. P. C. 494); and if the ship turns out to have been unseaworthy, the owner of the goods cannot recover against the underwriters. There is, however, no implied warranty as to 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 voyage policies. In the case of time policies there is no implied warranty of seaworthiness. (Dudgeon v. Pembroke, 46 L. J. (H. L.) 409.) 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, 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- communilivery 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 East, 572; Bell v. Carstairs, 2 Camp. 543.) A material misrepresentation will vitiate the policy, though the actual loss is in no way connected with the misrepresentation, and though no fraud was in

sured

Any material misrepresentation avoids the policy.

On a marine policy for total loss,

&c.

be held covered provided notice thereof was given to the defendant on receipt of advices.

3. The risks and losses insured against by the defendant under the said policy were those ordinarily covered by a marine policy, and included perils of the seas and all other perils, losses, and misfortunes that had or should come to the hurt, detriment, or damage of the said subject-matter of insurance or any part of the same. And it was by the said policy further provided that in case of any loss or misfortune, it should be lawful to the plaintiffs, their factors, servants, and assigns, to sue labour and travel in and about the defence, safeguard, and recovery of the said subject-matter of insurance, or any part thereof, without prejudice to the said insurance, to the charges whereof the defendant would contribute according to the rate and quantity of the sum by the defendant insured. And it was provided by the said policies that general average should be paid according to foreign statement if required, and the said subject-matter of insurance was warranted free from particular average below the load water-line, unless occasioned by fire, grounding, or contact with some substance other than water.

4. The plaintiffs and A. B., H. F., E. F., since deceased, and

A mere ex- tended by the insured. (Seaman v. Fonerau, 2 Str. 1183.) If a reprepression of sentation is not a positive assertion, but only an expression of opinion, opinion expectation, or belief, this will not avoid the policy, if the assertion is will not. made bonâ fide, and in ignorance of the untruth. (Barber v. Fletcher, 1 Doug. 305; Anderson v. Pacific, &c., Insur. Co., 21 L. T. N. S. 408, P. C.) It is sufficient, however, if the representation be substantially correct, and it need not, like a warranty, be strictly and literally complied with. (Pandon v. Watson, Cowp. 785.)

Any fraudulent statement

will destroy

the policy.

Fraud.]-Any fraudulent statement made by the assured to induce the underwriters to accept the risk will avoid the policy. "If the representation was by fraudulent design it avoids the policy without staying to inquire into its materialty." (Kent Com. 283.) If goods insured are

over valued with intent to defraud the underwriters, the contract is void, and the assured cannot recover even for the value actually on board. (Haigh v. De La Cour, 3 Camp. 319.)

Other defences.]-The defendants may plead some contravention of law by the assured having direct relation to the subject of the risk, and this, if sustained, will be a good defence. (See Cunard v. Hyde, 2 E. &

E. 1, L. J. 29 Q. B. 6; Wilson v. Rankin, 6 B. & S. 208; L. J. 34 Q. B. 62, aff. in Ex. Ch. L. R. 1 Q. B. 162; Dudgeon v. Pembroke, L. R. 9 Q. B. 581.) He may also plead the breach by the plaintiff of some one or other of the express or implied warranties of the policy; and in fact the defence in probably a majority of the actions on marine policies is a deviation by the vessel during the voyage or her unseaworthiness at the inception of the risk.

S. F., or some or one of them, were or was, at the time of the commencement of the said risk and of the effecting of the said insurance, and thence until and at the time of the several losses herein mentioned, interested in the subject-matter of the said insurance to the value and amount of all the moneys ever insured thereon, and the said policy was made for the use and benefit and on account of the person or persons so interested as aforesaid.

5. The said vessel sailed from N. to A. on the said insured voyage, and afterwards, on or about the day of, 1876, sailed from A. on the said insured voyage, and after the commencement of the said risk, and whilst the said policy was in full force and effect, the said vessel became and was, by perils insured against in the said policy and not by any of the perils, causes, and matters from which the said subject-matter of insurance was warranted free, wholly lost.

6. The plaintiffs further say that during the said insured voyage, and whilst the said subject-matter of insurance was covered by the said policy, the said subject-matter of insurance sustained a particular average loss by the perils insured against by the said policy, in respect of which the assured are entitled to be indemnified under the said policy.

7. The defendants further say that during the said insured voyage, and whilst the said subject-matter of insurance was covered by the said policy, a loss and misfortune arose within the true intent and meaning of the same, and thereupon, in accordance with the terms of the said policy in that behalf, the assured incurred divers charges and expenses for which the defendant became liable to the plaintiff for a large sum in proportion to the sum insured by the said policy.

8. The plaintiffs further say that during the said insured voyage, losses and expenses were incurred for the preservation. of the said vessel, her cargo, and freight, for which the assured became liable to contribute in general average, and a general average loss was thereby occasioned within the meaning of the said policy, for which the defendants became liable to pay to the plaintiffs a large amount.

9. The plaintiffs have requested the defendant to pay the several amounts due to them under and in respect of the said policy, but the defendant refuses to pay the same.

B B

On a marine policy for total loss, &c.

On a marine policy for total loss, &c.

Defence,
Unsea-

worthiness.

Concealment.

Payment

into Court.

On a marine policy for a total construc

tive loss.

The plaintiffs claim:

(1.) £100 damages.

(2.) In the event of the plaintiffs not being entitled to recover on the said policy, a return of the premium paid with interest.

Statement of Defence.

[First six paragraphs of defence denials and admissions.] 7. At the commencement of the voyage and risk respectively, and at all material times thenceforth, the vessel has been always unseaworthy for the risk and voyage respectively.

8. The defendant further says that he was induced to effect the said insurance, and to execute the said policy, by the wrongful and improper concealment by the plaintiffs and their agents from the defendant of certain facts then known to the plaintiffs and their agents, and unknown to the defendant, and material to the said risk, and which ought to have been communicated by the plaintiff's or their agents to the defendant or his agents, viz. [Here set out the substance of the alleged concealment].

9. The defendant brings into Court the sum of £3, being the amount of premium paid by the plaintiffs in respect of the said policy with interest, and says that the same is enough to satisfy the claim of the plaintiffs in respect of the said policy.

Action by Shipowner on Marine Policy for Total Constructive
Loss of a Ship.

1. The plaintiff, at the times hereinafter respectively mentioned, was the owner of the ship called the "M."

2. The plaintiff, on the 8th day of June, 1875, caused to be made a policy of insurance, with certain memoranda thereunder written in the words and figures following:

[Here follows the policy set out at length. It was in the usual form.]

3. In pursuance of the said policy aforesaid the plaintiff paid to the defendant £3 3s. as a premium for the insurance of £50 of and upon the premises in the said policy mentioned as aforesaid, and the defendant became and was an insurer to the plaintiff as aforesaid, and duly subscribed the said policy as such

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