that The insured risks against all

must guard

shall

risks,

all necessary

There is an implied warranty also the insured will guard against the covered by the policy, and that no loss happen to the ship or cargo through any wilful default or negligence on his part. Also that he will be provided with all neces- and must carry sary papers to show the ship's nationality, papers. which are required by the law of nations, or by particular treaties; for if the ship has not the proper documents on board to identify her, and she is lost for want of proper documentation, the underwriters are discharged. (Pipon v. Cope, 1 Camp., 434).

When a vessel has been insured for a Insurance for partial or total certain sum, whether for the voyage or for loss. a term, it will be clearly understood that the arrival of the ship at its destination puts an end to the liability of the underwriter. But as "the best laid schemes of mice and men gang aft a-gley," according to Burns, so the best intentions of the master and crew of a ship are not able in every case to bring her 'to the desired haven where they would be." In such cases the question as to what proportion of loss the underwriter is liable for has to be determined. Is the loss partial or is it total? If the former, the contract being one of indemnity only makes the liability of the insurer proportionate. If on the contrary, the loss is total, the insured will be entitled to entire payment of it.

Definition of total loss;

of partial loss,

Constructive total loss.

Notice of abandonment to be given.

Effect of abandonment.

The loss is total where it is occasioned by foundering or fire; or where the ship is totally wrecked; or where it is injured to such an extent as to justify the owner in abandoning it to the insurers.

The loss is partial in cases where the subject matter of the insurance is only partially damaged, or where the insured is liable to contribute on a general average in case of an insurance on goods, or freight.

A constructive total loss arises when the subject matter of the insurance, although still in existence, is either actually, or beneficially, lost to the owners, and when notice of abandonment has been given to the insurers. This notice of abandonment must be given by the insured, or his duly authorised agent, to the insurers, and need not of necessity be in writing. (Rankin v. Potter, L.R. 6 H. L., 83.) It must be express and clear in its terms, and if the underwriters object to the notice, the objection must be made within a reasonable time. The insured should give notice of abandonment as soon as possible, so as to enable the insurers to obtain as much benefit as they can from any part of the property that may still be of value to them. (Roux v. Salvador, 3 Bing., N. C., 526). As an abandonment transfers the whole property in the thing abandoned to the insurers from the date of the loss, an

abandonment can neither be partial nor conditional. (Scottish Marine Insurance Co, v. Turner, I Macqueen's H. L. Cases, 342. McMasters v. Shoolbred, I Esp., 237).

insurers where

In connection with partial loss, as we Practice of have said, the contract of insurance being a loss is partial. contract of indemnity, the insurers only pay their proportion of the loss sustained. Thus if on a voyage the loss incurred has been suffered by the ship itself, and the owner has repaired such damage, he will not be allowed the full amount for the damage done, but a third of the cost of repairing will be deducted in consideration of the benefit that such owner receives from new material instead of the old. (Poingdestre v. Royal Exchange Insurance Co., R. and M., 378).

The way in which the original value of

the goods insured is ascertained, when the policy is an open one, is by taking the invoice price at the port of loading, adding to that, the premium paid for insurance, and also the commission. (Usher v. Noble 12, East. 639. Langhorn v. Allnutt, 4 Taunt, 511).

This settlement between parties to an insurance, is called adjustment, and in cases where the policy is a valued one, of course, the agreement is acted upon, and a fixed sum paid for loss sustained. Concealment of any facts, necessary to be known, is as fatal to a policy as misrepresentation; but the

Valuation
where policy is
not an open one.

Definition of adjustment.

Effect of a

concealment of

concealment must be of a material tact.

material facts. (Durrell v. Bederley, 1 Holt, 283 Judgment).

Return of premium.

Insurer must have insurable interest.

Payment of a loss is enforced by an action on the policy, and this action may be commenced and proceeded with, notwithstanding that there is an express provision in the policy that all disputes shall be referred to arbitration. (Scott v. Avery, H. L., Ça. 811).

If a premium has been paid for an insurance, and the risk covered by it has never been incurred, i.e., if the policy insured goods, and there were no goods put on board the ship, or, if the voyage for which the goods were insured was never undertaken, in such cases the premium would have to be returned. (Martin v. Sitwell, Shon. 156.

When the insurance has been effected by a person who has no insurable interest in the property, the premium will be returned; that is, of course, in cases where the insurance has been effected without fraud. (Routh v. Tompson, 11 East, 428).

PART III.

CHAPTER

XXII.

MERCANTILE CONTRACTS-CONTRACTS OF SALE.

sale.

Sale is the transfer of the property in Definition of goods from one person to another for a valuable consideration, which must must be money. It is therefore different from exchange or barter, which is the giving of one thing for another. Anyone who has the property in the goods can dispose of that property to another by sale. If a man has not the property in the goods, e.g., if he has stolen them or found them, he can nevertheless make a valid sale, and be able to give the buyer a good title to them, but for that purpose he must make the sale in market overt during the usual market hours.

market overt.

A market overt is, in the country, a Definition of market held on certain days provided for that purpose by local custom or by charter ; in London every shop is a market overt,