surance.

Park on In- was universally used, as well by the two insurance companies as by private underwriters, till the year 1754, when Ld. Ch. J. Ryder ruled, and a special jury, agreeably to his direction, decided, that a ship, having run aground, was a stranded ship within the meaning of the memorandum; and that, although she got off again, the underwriter was liable to an average or partial loss upon damaged corn. This decision induced the two companies (The Royal Exchange Association and The London Association) to alter the memorandum, by striking out the words, or the ship be stranded ;' so that now they consider themselves liable to no losses which can happen to such commodities, except general averages and total losses. But the old form is still retained by other offices and by private insurers. What shall be considered as losses within the meaning of this memorandum will be the subject of future investigation; my design, at present, being only to enumerate the essentials of a policy, and the reason and origin of them, as far as I have been able to trace them.

There are, however, some kinds of property which do not fall under the general denomination of goods in a policy, and for the loss of which the underwriters are not answerable, unless they are specifically named; as goods stowed on deck, where such a mode of stowage is not conformable to the usage of the trade, captain's clothes, ship's provisions, and the like.b

It is a question, whether a cargo of dollars, or other coin, jewels, &c., if lost, be recoverable under a policy upon goods and merchandises generally; and I can find no printed case where the question has been at all discussed in England.

In one case (Da Costa v. Firth) the subject-matter of the insurance was bullion, and the policy was general on goods and merchandises ; but no objection was taken on that ground, nor was the point ever argued. By the ordinances of several foreign states, Middleburg, Amsterdam, Konigsberg, and others, it is specially declared that money shall not be recovered under the denomination of goods or merchandise; but the insurance must in the policy be expressed to be upon money to render it valid.d The book in which the ordinances above referred to are collected, states explicitly that gold and silver, coined and uncoined, pearls, and other jewels, may be insured at London and Hamburgh, and several other places, under the general expression of merchandise. Roccus, in his treatise upon insurances, concurs in the latter opinion, and quotes Santerna upon the subject. He draws a distinction, upon the merits of which I do not presume to decide, between money or jewels for the purposes of commerce, which constitute part of the cargo, and such as are merely personal and for private purposes; the former being clearly liable to contribute to a general average, but not the latter. His words are these: “Assecurans merces in talem navem immissas, intelligitur assecurare pecuniam, aurum, argentum, gemmas, margaritas, et annulos in dictâ navi existentes, quæ omnia, appellatione mercium, in navem

a See p. 5.

b Ross v. Thwaite, cited in Milward v. Hibbert, 3 Q. B. 120.

c 4 Burr. 1966.

d 2 Magens, 71, 89, 131,182.

:

San

immissarum, comprehenduntur, licet expressa non fuissent.
terna declarat, quod si pecuniæ, margaritæ et annuli erant destinati
ad vendendum vel mercandum alias merces, tunc appellatione mer-
cium veniunt, et in assecuratione comprehenduntur, et loco mercium
habentur vocat dictas res merces, cum occasione earum, habeat
locum contributio, sicut aliarum rerum, ne in istis assecurationibus
mercatorum potius apices juris, quam veritas observari videantur:
et tandem, quia large comprehenduntur omnes res, quæ sunt destinatæ
ad negotiandum, et facit etiam, quod confiscatio mercium navis ex-
tenditur etiam ad pecuniam numeratam." I forbear to draw any
conclusion from these premises, which is the plan I have uniformly
adopted where there is no adjudged case upon the question.

4. The name of the place at which the goods are laden, and to which
they are bound. This has been always held to be necessary in poli-
cies, at least for upwards of 200 years; and must be so, on account
of the evident uncertainty which would follow from a contrary prac-
tice, as the insurer would never know what the risk was which he
had undertaken to insure. Molloy has laid down this doctrine, that
if a ship be insured from L. to
(a blank being left

by the lader of the goods to prevent a surprise by an enemy,) and if in her voyage she happen to be cast away, though there be private instructions for her port, yet the insured must sit down with his loss, by reason of the uncertainty. In support of his opinion, he cites the case of M. G., Gov. of Calais, which was decided by Commrs. of Assurance at Rouen against the assured, because, although the bills of lading truly declared the quantity and quality of the goods, the port of the ship's discharge was left a blank, on account of the war which was then existing. Such also is now the law and usage of merchants. It is also customary to state in the policy at what port or places the ship may touch and stay during the voyage, so that it shall not be considered as a deviation to go to any of those places.

5. The time when the risk commences, and when it ends. In most of the commercial countries abroad, it is particularly expressed, either in their ordinances or policies, and sometimes in both, that the risk of the insurers shall commence the moment the goods quit the shore, and shall continue till they are landed at the place of their destination; and that the insurer not only runs the risk in the ship named in the policy, but also in all the boats or lighters that shall be employed in carrying the goods aboard, and also in fetching them ashore. But the custom of this country is very different, for the English policies in general expressly declare that "the adventure shall begin upon the said goods and merchandises from the loading thereof on board the said ship, and so shall continue until the said ship, goods, and merchandises shall be arrived at L., and upon the said ship until she hath moored at anchor 24 hours in good safety; and upon the goods, till the same be there safely discharged and landed." From these words it is obvious that insurers are not answerable for any accidents which may happen to the goods in lighters, or boats

Roccus, Not. 17.

b Molloy, b. 2, c. 7, s. 14.

Ord. of Antwerp, Amsterdam, Spain,

and Copenhagen; and see Code de Com-
merce, 1. 2, tit. 10, s. 2.

CHAP. I.

surance.

Park on In- going abroad, previous to the voyage; yet, as the policy says the risk shall continue till the goods are safely landed, it seems no less obvious, that where ships cannot come close to the quay in order to unload, the insurer continues responsible for the risk to be run in carrying the goods in boats to the shore. If there be a loss, however, in these cases, the accident must have happened while the goods were in the boats or lighters belonging to the ship, or in public lighters,a for then it is considered as a continuance of the same ship and voyage. I say public lighters, because, if the owner bring his own private lighter, and receive the goods, or, if the lighter being a public one, hired in the usual way, he make such public lighter his own for the time being, as by taking it under his control, the underwriters are thereby discharged.c

b

By the ordinances last referred to, the number of days in which people are obliged to unload their goods is stipulated; but in England no express time is fixed, the owners being left to their own discretion, provided there is no unreasonable delay, which must always depend upon circumstances.d The risk on the body of a

ship, according to the form of the policy received in practice, is to
commence, in general, "from her beginning to load at
and so shall continue and endure until the said ship shall arrive at
and hath there been moored at anchor 24 hours in good
safety." But this mode of stating the commencement of the risk
must commonly be applied only to insurances on ships outward bound;
for when insurance indeed is made on the homeward risk, the begin-
ning of the adventure is sometimes stated to be immediately from
and after her arrival at the port abroad; at other times, from the
departure; and, in short, it is so variable, that nothing certain can
be said upon the point, depending, as it always has, and always
must, upon the inclinations of the insured, as expressed in the

contract.

6. Of the various perils and risks against which the underwriter insures. These must always be inserted in all policies, and indeed the words now used are so comprehensive, that in the opinion of Molloy, all those curious questions, which occasioned much debate and controversy among the lawyers of former days, are now finally settled. Be this as it may, it is certain that there is hardly any event which the imagination can form, as likely, in the common course of things, to happen to any ship, that is not amply provided for by the policies now used by underwriters. They undertake to bear" all perils of the seas, men of war, fire, enemies, pirates, rovers, thieves, jettisons, letters of mart and counter mart, surprisals, takings at sea, arrests, restraints and detainments of all kings, princes, and people, of what nation, condition or quality soever; barratry of the master and mariners, and all other perils, losses and misfortunes, that have or shall come to the hurt, detriment, or damage of the said goods and merchandises, and ship, or any part

a Hurry v. R. E. Assurance, 2 B. & B. 430; see also Matthie v. Potts, 3 B. & B. 23; and Morewood v. Pollok, 1 E. & B. 743.

b Sparrow v. Carruthers, 2 Str. 1236.

Strong v. Nattally, 1 N. R. 16.

d See Noble v. Kennaway, Dougl. 492.
e 1 Magens, 47.
f B. 2, c. 7, s. 7.

thereof."
"a But although the words descriptive of the hazards run
by the insurers be so very large and comprehensive, it should seem
that a great difference is to be made between the damage sustained
by goods on board a ship, and that which occurs by external acci-
dents; that the insurer is liable in the latter case cannot admit of a
doubt, but as the former may proceed from the bad stowage of the
goods, or from their being exposed to wet, and as they are neglects
attributable to the master, the ship and not the insurer ought to be
answerable. Upon this point, however, I find no case in the re-
ports; and therefore I start it rather as a doubt in my own mind,
than as presuming to hint at an opinion. In Malyneb it is said,
that if there be thieves on shipboard among themselves, the master
of the ship is to answer for that, and to make it good, so that the
insurers are not to be charged with any such loss, for he supposes
the word thieves to mean assailing thieves only, for so he terms
them. It is certain, that the 7 Geo. 2, c. 15, gives some countenance
to this idea, by the preamble to which it appears, that previous to
the period of passing that act, the owners of the ship were liable to
the proprietors of the goods for any embezzlement, secreting, or
making away with, of the goods, by the master or the mariners, or
with their privity, to whatever amount the value might be: by that
statute, however, the measure of the responsibility is to be the value
of the ship and freight. See also the 26 Geo. 3, c. 86, which
limits the shipowner's responsibility to the value of the ship and
freight, in cases of robbery from without. See also 53 Geo. 3,
c. 159; and hereinafter titles Causes which excuse the masters
and owners; Limitation of responsibility, &c. To be sure, it is not a
necessary consequence, that because the owner is liable in such a
case, therefore the insurer, if an insurance has been made, must be
discharged. Roccus, however, is of opinion, that when a theft is
committed on board the ship, and some goods have been stolen,
then the insurers are not bound, because the owner of the goods, as
much as in him lies, is obliged to take care of them; and if they
are stolen while in the vessel, this cannot be called an accident, but
has happened through the negligence of those who did not take
proper care of them. He adds, that the master or owners being
liable is an additional reason for this regulation, because the master
of the ship is held answerable for thefts committed therein, as by
receiving the goods on board, he enters into a tacit agreement to
deliver them safe and whole. It was thought proper thus to state
the opinion of this learned writer upon the subject, on account of
the total silence of the law of England in this respect.

But that the underwriter is liable for a robbery of the goods insured, when committed by thieves from without, cannot be doubted; as thieves are a peril expressly insured by the policy.d

In addition to the various risks above enumerated, which the underwriters take upon themselves, it is frequently the practice to

a 1 Magens, 50.

b C. 25. Lex Merc. Red. 4th edit.

p. 295.

c Roccus de Assec. Not. 32.

d Harford v. Maynard, before Lord Mansfield at Guildhall, Hil. vac. 1785.

CHAP. I.

surance.

Park on In- insure her, lost or not lost, which is certainly very hazardous ;a because if the ship should be lost at the time of the insurance, still the underwriter, provided there be no fraud, is liable. The premium is, however, great in proportion, depending upon the circumstances stated to show the probability or improbability of the ship's safety. These words, lost or not lost, are peculiar to English policies, not being inserted in the policies of foreign nations.b

7. The consideration or premium for the risk or hazard run. This is the most material part of the policy, because it is the consideration of the premium received, that makes the underwriter liable to the losses that may happen. In English policies it is always expressed to have been received at the time of underwriting; we the assurers confessing ourselves paid the consideration due unto us for this assurance by the assured.

As between the underwriters and the assured, this receipt is, in the absence of fraud, conclusive; so that no action can be maintained for premiums by the underwriters against the assured. As between the underwriter and the broker, it is no evidence at all. The broker is the agent both of the assured and of the underwriter; of the assured, in effecting the policy; and of the underwriter, in receiving the premium from the assured. By the general course of dealing, the broker has an account with the underwriter; in that account the broker gives the underwriter credit for the premium when the policy is effected, and he, as the agent of both the assured and the underwriter, is considered as having paid the premium to the underwriter, and the latter as having lent it to the broker again, and so becoming his creditor. The broker is then considered as having paid the premium for the assured. The fact of giving credit in account by the broker to the underwriter, and the underwriter, by the terms of the policy, having acknowledged the receipt of the premium, are equivalent to actual payment.f Thus it is that the broker can recover the premiums, as for money paid; and that, too, before he has actually paid them to the assurer. 8. The day, month, and year, on which the policy is executed. This insertion seems very necessary, because by comparing the date of the policy with the date of facts which happen afterwards, or are material to be proved, it will frequently appear whether there is any reason to suspect fraud or improper conduct on the part of the insured.

The 9th and last requisite of a policy of insurance is, that it be duly stamped. The statutes, relating hereto, are the 35 Geo. 3, c. 63, and the 7 & 8 Vict. c. 21. By the former, all former duties were abolished; and, since then, the duties thereby imposed have been, from time to time, reduced, especially by the latter Act, which

a Molloy, b. 2, c. 7, s. 5.

b Roccus, Not. 51; 5 Burr. 2803.

Foy v. Bell, 3 Taunt. 439; Mavor
v. Simeon, Ib. 497.

d Dalzell v. Mair, 1 Camp. 532;
Anderson v. Thornton, 8 Exch. 429.
e I Camp. supra.

f See Power v. Butcher, 10 B. & C.

335, referring to Airy v. Bland, Marsh on Ins. 300; Grove v. Dubois, 1 T. R. 112; De Gaminde v. Pigou, 4 Taunt. 247; Minett v. Forrester, Ib. 541. The questions of set-off, mutual credit, and the like, will be considered in their proper places. 1 Mag. 84.