fendants' clerk through mistake; and it was said, that trover could - CHAP. I. not be maintained for that which never existed: but his Lordship would not suffer the defendants now to contradict their own representation; and the plaintiff accordingly had a verdict to the amount of his interest, the premium being deducted." It is material to observe, that policies of insurance, though Written called written instruments, are, for the convenience of trade, and the clauses. dispatch of business, generally printed, leaving blanks for the insertion of names and all other requisites. This being the case, it is frequently necessary to insert written clauses, in order to express the meaning of the parties to the contract, which, from some particular circumstances, the printed form may not sufficiently explain. These written clauses and conditions, thus inserted, are to be considered as the real contract; the court will look to them to find out the intention of the parties, and will consequently suffer such conditions to control the printed words in policies of insurance.b Having premised thus much of policies in general, it may be proper to consider this subject in a threefold point of view: 1, what persons may be insurers; 2, what things may be insured; 3, what the requisites of a policy are. 1. What persons may be insurers. It should seem, that, by the Who may common law and usage of merchants, any person whatever might be insurers. be an insurer, however unable he might be, from poverty, to make up the losses insured against, provided the merchant was weak enough to trust to such a security. In process of time, however, there were so many who made a show of great wealth, in order to deceive the honest and unsuspicious trader out of his premiums, and who were in insolvent circumstances, that it became an object of national concern and parliamentary interference. With this object, the 6 Geo. 1, c. 18, restrained all other corporations or bodies politic, except those to be thereby chartered (The Royal Exchange Assurance and The London Assurance), and all societies or partnerships, or persons acting in any society or partnership, from effecting marine insurances; and lending money on bottomry. But this was repealed by the 5 Geo. 4, c. 114. So that, in this respect, the common law prevails, as before. It has recently been decided that the 35 Geo. 3, c. 68, s. 11, does not require the name of every individual underwriter constituting the assuring firm to be expressed in the policy.c 2. What things may be insured. I beg leave here to premise, What may that I do not mean, at present, to go into the question of insurance, be insured. upon interest or no interest, having reserved that for the subject of a distinct chapter. My design, in this place, is only to show what kinds of property are the subject of insurance, upon the supposition that every person making insurance is interested in the goods, as the law requires. a Harding v. Carter; Sitt. at Guildh. E. vac. 1781. b See Robertson v. French, 4 East, Rep. 130; post, Ch. II. c Reid v. Allen, 4 Exch. 335; see also Hallett v. Dowdall, 21 L. J. Q. B. 99. As to power of Directors to bind B 2 Park on In surance. Policy on seamen's wages. a The most frequent subjects of marine insurance are ships, goods, merchandises, the freight or hire of ships, profits to arise from the sale of goods (in which the insurer has a present interest), passage-money, a lien on goods, and the like. But although insurances upon such property as we have just enumerated, most frequently occur in practice, yet in the law-books we meet with cases which can hardly fall within any of those descriptions. Thus bottomree and respondentia are a particular species of property which may be the subject of insurance. But then it must be particularly expressed in the policy to be respondentia interest; for, under a general insurance on goods, the party insured cannot recover money lent on bottomree.g Such has been, and is, at this day, the established usage of merchants. But money expended by the captain for the use of the ship, and for which respondentia interest was charged, may be recovered under an insurance on goods, specie, and effects, provided the usage of the trade, which in matters of insurance is always of great weight, sanctions it." By the marine regulations of most, if not of all, the trading powers in Europe, insurances upon the wages of seamen are forbidden;1 a regulation founded in wisdom and sound policy. It is also the spirit of the British law expressed in the ship's articles, and, above all, in making wages depend, as they generally do, on the earning of freight. The sailors are thereby interested in the return of the ship; they will, on that account, be prevented from deserting it when abroad, from leaving it unmanned, and in times of danger, arising either from perils of the sea, or the attacks of an enemy, will be more anxious for its preservation. But these good effects would be entirely defeated, if insurance on their wages, or upon any commodity which they are to receive at the end of the voyage in lieu of wages, were to be permitted; for to whatever cause the loss might be attributed, they would still be secure. However, it should seem that this regulation does not mean to prevent mariners from insuring those wages which they are intitled to receive abroad, or goods which they have purchased with those wages in order to bring them home; but, in such a case, they are to be considered in the same light with other men.m Again, these prohibitions do not extend to the masters of ships; and therefore it has been held that an insurance on the commission, privileges, &c., of the captain of a ship in the African trade was legal." Flint v. Flemyng, 1 B. & Ad. 48; See Ellis v. Lafone, 8 Exch. 554, Stockdale v. Dunlop, 6 M. & W. 232. M'Swiney v. Royal Exch. Ass. Co., 14 Q. B. 660. The ship's earnings, or the profit which an owner derives from carrying his own goods in his own ship, may be insured under the name of freight. 1 B. & Ad. 48 ; and Devaux v. Janson, 5 N. C. 519. d 15 & 16 Vict. c. 44, s. 51. CHAP. I. An opinion seems to have prevailed, that a shipowner could not recover from an underwriter the value of goods stowed on deck; such a mode of stowage being looked upon as calculated to obstruct On deck the management of the vessel, and increase the risk of navigation. cargo. But it is now clear that if such a mode of stowage be conformable to the usage of the trade, the underwriter is liable on the policy. Deck stowage is one thing, improper stowage is another.a Deck stowage is, however, sometimes expressly prohibited by Act of Parliament, as by The Customs' Consolidation Act, 1853 (16 & 17 Vict. c. 107, s. 171): in that case the policy would be void. b 3. Of the requisites of a policy. The form of a policy, now used Requisites in London, is nearly the same which was adopted 200 years ago, of policy. as may be collected from Malyne ; but its antiquity cannot preserve it from just censure, it being very irregular and confused, and frequently ambiguous, from making use of the same words in different senses. The essentials in the contract of insurance are: 1, the name of the person for whom the insurance is made 2, the names of the ship and master; 3, whether they are ships, goods, or merchandises, upon which the insurance is made; 4, the name of the place where the goods are laden, and whither they are bound; 5, the time when the risk begins, and when it ends; 6, all the various perils and risks which the insurer takes upon himself; 7, the consideration, or premium, paid for the risk or hazard run; 8, the month, day, and year, on which the policy is executed; 9, the stamps required by Act of Parliament. Of each of these in their order. с 1. Of the name of the person insured. It was formerly very much the practice to effect policies of insurance in blank, as it was called, that is, without specifying the names of the persons for whose use and benefit, or on whose account, such insurances were made; a practice which had been found in many respects to be mischievous, and productive of great inconveniences. These evils were remedied at a very early period in Genoa and France by the marine ordinances of those countries, which required the name of the person insured to be inserted in the policy, and whether he was to be considered in the capacity of principal or factor. In England a similar regulation took place in the year 1774,d with respect to insurances upon lives; but it was not till the year 1785 that any provision was made for this evil in policies upon ships and merchandises. This was done by the 25 Geo. 3, c. 44; but it was repealed by the 28 Geo. 3, c. 56: this declares that it shall not be lawful to effect any policy upon any ship, without first inserting in such policy the name or names or the usual style and firm of dealing of one or more of the persons interested in such insurances; or without, instead thereof, first inserting or causing to be inserted in such policy or policies of insurance, the name or names of the usual style and firm of dealing of the consignor or consignors, consignee or con a Milward v. Hibbert, 3 Q. B. 120. d 14 Geo. 3, c. 48. e Pray v. Edie, 1 T. R. 313; Cox v. Parry, Ib. 464. surance. Park on In- signees of the goods so to be insured; or the name or names or the usual style and firm of dealing of the person or persons residing in Great Britain, who shall receive the order for and effect such policy; or of the person or persons who shall give the order or direction to the agent or agents immediately employed to negotiate or effect such policy. Moreover, the 35 Geo. 3, c. 63, s. 11, for granting certain stamp-duties on sea insurances, declares—that every contract liable to duty under that Act should be deemed a policy of insurance; and that the premium or consideration in the nature of a premium paid, given or contracted for upon such insurance, and the particular risk or adventure insured against, together with the names of the subscribers and underwriters and the sums insured, should be respectively expressed, or specified in or upon such policy; and in default thereof, every such insurance should be null and void, to all intents and purposes whatever. The 55 Geo. 3,.c. 184, and the 7 & 8 Vict. c. 21, give other duties, but seem to leave these provisions so far untouched. A subscription, in the name of the partnership firm, is a sufficient compliance with the 35 Geo. 3, c. 63.a Upon the 28 Geo. 3, c. 56, it was held not necessary, where a policy was effected by an agent, to add the word agent, or any other description to his name, in the policy itself. It has also been decided, that a policy effected by a broker, describing himself therein as agent, sufficiently complied with the requisition of that statute. It was presumed, after verdict, that it was proved, that the plaintiffs fell within one or other of the descriptions in the Act.b Previous to the passing of the 25 Geo. 3, it was held, that the husband of a ship had no right to insure for any part-owner, without his particular direction; nor for all the owners in general, without their general direction, or something equivalent to it. But if part-owners of a ship be in partnership generally, an order to insure, given by one, binds all.d 2. Of the names of the ship and master. I do not find any express regulation of this matter in England; but it seems to be necessary, by the law and usage of merchants, to insert the names of the ship and master, in order to fix with precision the bottom upon which the adventure is to be made, and the captain by whose direction the ship is to be navigated, because according to the degree of strength and sufficiency of the one, and the skill, ability and knowledge of the other, the risk is increased or diminished; and so also, probably, will the amount of the premium be regulated. The usage of the merchants of England in this respect is agreeable to the express laws and regulations of other maritime states upon this point. Sometimes, however, there are insurances generally upon any ship or ships; and a policy so worded is legal. The assured may apply such a policy to whatever ship he thinks proper, within the terms of it.f Reid v. Allan, 4 Exch. R. 326; b De Vignier v. Swanson, 1 B. & P. c French v. Backhouse, 5 Burr. 2727. d Hooper v. Lusby, 4 Camp. 66. e Code de Commerce, 1. 2, tit. 10, s. 1; Ord. of Amsterdam, s. 2. f Henchman v. Offley, 2 H. Bl. 345; Kewley v. Ryan, Ib. Policies are not unfrequently worded thus: on board of the good ship CHAP. I. called the Amy, whereof was master A. B. for that voyage, or whoever else should go for master in the said ship, or by whatever other name or names the said ship or the master was or should be named or called: when such general words are used, it becomes a mere question of identity.a It has, indeed, been held, that the owners of goods insured, by the act of shifting the goods from one ship to another, do not preclude themselves from recovering an average loss, arising from the capture of the second ship, if they acted from necessity, and for the benefit of all concerned.b 3. Whether they are ships, goods, or merchandises, upon which the insurance is made, is a fact which must be stated. It is absolutely necessary that there should be a specification upon which of these the underwriter insures; because, otherwise, it would be impossible to know whether, in any instance, he is liable or not to the loss sustained. But it is another question whether, in policies upon goods, it be necessary to declare the particulars. The practice, I believe, is very unsettled. It is the opinion, however, of a very respectable merchant, that the particulars of goods should be specified, if possible, by their marks, numbers, and packages, rather than that they should be included under the general denomination of merchandise; d or that, if it be agreed to insert them, when known to the insured, care should be taken not to omit it, as such specification prevents much trouble in proving to the insurer the particular goods insured, which are, more or less, subject to damage. But this mode of particularising property is only advisable to be done, or, indeed, can only be done, when the risk commences at home; because, when goods are coming from abroad, it is better to insure under general expressions on account of the various casualties which may happen to obstruct the purchase of the commodities intended to be sent. may be proper here to mention that there are certain kinds of merchandise which are of a perishable nature, and liable to early corruption; on account of which, the underwriters of London have inserted a memorandum at the foot of their policy, by which they declare that in insurances upon corn, fish, salt, fruit, flour, and seed, they will not be answerable for any partial loss, but only for general averages, except the ship be stranded. That in insurances on sugar, tobacco, hemp, flax, hides, and skins, they consider themselves free from partial losses, not amounting to 5 per cent., and that on all other goods, as well as on the ship and freight, if the partial loss be under 3 per cent., unless it arise from a general average, or the stranding of the ship, they also consider themselves discharged. This clause was introduced in the year 1749, in order to prevent the underwriters from being harassed by trifling demands, which must necessarily have arisen from every insurance of this kind, on account of the perishable nature of the cargo. The form of this memorandum a Le Mesurier ". Vaughan, 6 East, 381. b Plantamour v. Staples, 1 T. R. 611; and see Shipton v. Thornton, 9 Ad. & E. 322. c Crowley v. Cohen, 3 B. & Ad. 478; In re Wright, 1 A. & E. 621. It d 1 Mag. 8; Code de Commerce, 1. 2, tit. 10, s. 1. e See Cocking v. Fraser, 4 Dougl. 295; Cantillon v. L. A. C., 3 Burr. 1553. |