A false statement that other insurers have taken the risk on such or such terms is a misrepresentation; but a false statement by the insured that he thinks they would take it on such terms is not one, for of this the insurers can judge for themselves.

Every statement or representation will be construed rationally, and so as to include all just and reasonable inferences. A substantial compliance with it will be sufficient; and a literal compliance which is not a substantial one will not be sufficient.

SECTION XI.

THE PREMIUM.

THIS is undoubtedly due when the contract of insurance is completed; but in practice in this country, the premium in marine insurance is usually paid by premium note on time, which is given at or soon after the delivery of the policy. If the policy acknowledge the receipt of the premium, and it be not paid, this receipt will be no bar to an action for it.

The premium is not due if the risk is not incurred; whether this be caused by the non-sailing of the ship; or by one insured on goods not having goods on board; or not so much cargo as he is insured for; or by any error or falsity in the description which prevents the policy from attaching.

If the premium be not earned, or not wholly earned, it must be returned in whole or in part by the insurers if it has been paid; and not charged in account with the insured, if it be unpaid.

The premium may be partially earned; and then there must be a part return only. As if the voyage consist of several passages, or of "out and home" passages, and these are not connected by the policy as one entire risk; or if the insured have some goods at risk, but not all which he intended to insure.

It is, however, an invariable rule, that if the whole risk attaches at all,—that is, if there be a time, however short, during which the insurers might, in case of loss from a sea-peril, be called on for the whole amount they insure, there is to be no return of premium.

In this country, insurers usually retain one-half of one per cent of a returnable policy. And our policies contain a clause

permitting the insurers to set off the premium due against a loss, whether the note be signed by the insured or by another person.

SECTION XII.

THE DESCRIPTION OF THE PROPERTY INSURED.

THE description must be such as will distinctly identify the property insured, as by quantity, marks, and numbers, or a reference to the fact of shipment, or the time of shipment, or the voyage, or the consignee; or in some similar and satisfactory way; and no mere mistake in a name, or otherwise, vitiates the description if it leaves it sufficiently certain. If different shipments come within the policy, the insured may attach it to either by his declaration, which may be done after the loss, provided this appears to have been the intention of the parties. "Cargo, "goods on board," "merchandise," mean much the same thing; and do not attach to ornaments, clothing, or the like, owned by persons on board and not intended for commercial purposes. "Property" is the word of widest and almost unlimited meaning. "Ship" or "vessel" includes all that belongs to it at the time,-even sextants or chronometers belonging to the ship-owner, and by him appropriated to the navigation of the ship. So it includes all additions or repairs made during the insurance.

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The phrase "a return cargo" will generally apply to a homeward cargo of the party insured in the same ship, however it be procured; but the phrases "proceeds" and "returns" are generally regarded as limited to a return cargo bought by means of the outward cargo. And neither of these, or any similar phrases, will apply to the same cargo brought back again, unless it can be shown by the usage, or other admissible evidence, that this was the intention of the parties.

The nature of the interest of the insured need not be specified, unless peculiar circumstances, closely connecting this interest with the risk, make this necessary. But either a mortgagor or a mortgagee, a charterer, an assignee, a consignee, a trustee, or a carrier, may insure as on his own property, and without describing the exact nature of his interest.

SECTION XIII.

THE PERILS COVERED BY THE POLICY.

THE policy enumerates, as the causes of loss against which it insures, Perils of the Sea, Fire, Piracy, Theft, Barratry, Capture, Arrests, and Detentions; and "all other perils," by which is meant, by construction of law, all other perils of a like kind with those enumerated.

It is a universal rule, that the insurers are liable only for extraordinary risks. The very meaning of "seaworthiness,' which the insured warrants, is that the ship is competent to encounter with safety all ordinary perils. If she be lost or injured, and the loss evidently arose from an ordinary peril, as from common weather, or the common force of the waves, the insurers are not liable, because the ship should be able to withstand these assaults. And if the loss be unexplained, and no extraordinary peril be shown or indicated, this fact would raise a very strong presumption of unseaworthiness. As, for example, if the vessel went down while sailing with favorable winds on a calm ocean.

It is a universal rule, that the insurers are never liable for a loss which is caused by the quality of the thing lost. This rule applies to the ship, her rigging and appurtenances, when worn out by age or hard service. But its most frequent application is to perishable goods. The memorandum already spoken of provides for this in some degree. But the insurers are liable for the loss of no article of merchandise whatever, if that loss were caused by the inherent qualities or tendencies of the article, unless these qualities or tendencies were excited to action and made destructive by a peril insured against. Thus, if hemp rots from spontaneous fermentation, which cannot occur if it be dry, the insurers are not liable if the loss arose from the dampness which the hemp had when laden on board; but if the vessel were strained by tempest, and her seams opened, and the hemp was in this way wet, and then rotted, they are liable.

The insurers may take upon themselves whatever risks they thoose to assume. And express clauses in a policy, or the uniform and established usage and construction of policies, may throw upon them, as in fact it does, a very large liability to the

owner or shipper for the effects of the misconduct-wilful or otherwise of the master and crew. The clause relating to barratry, to be spoken of presently, is of this kind.

If the cargo is damaged through the fault of the master or crew, the shipper of the cargo has a remedy against the owner of the ship. But this does not necessarily discharge the insurers. If, however, he enforces his claim against them, he is bound to transfer to them his claim against the ship-owner. For the insurers of the cargo, by paying a loss thereon, put themselves, as it were, in the position of the shippers, and acquire their rights.

SECTION XIV.

PERILS OF THE SEA.

By this phrase is meant all the perils incident to navigation; and especialy those arising from the wind and weather, the state of the ocean, and its rocks and shores. But it will be remembered that the insurers take upon themselves only so many of these as are "extraordinary." Hence, destruction by worms or by rats is not such a peril as the insurers are liable for, because it is not extraordinary. It seems now settled that fire is not included among "perils of the sea," or "perils of the river." But it is usually mentioned in the policy, as one of the risks insured against.

If a vessel be not heard from, it will be supposed, after a reasonable interval, that she has perished; but the law has not determined the length of this interval with any exactness. The presumption of law will be, that she was lost by an extraordinary peril of the sea, and, of course, the insurers will be answerable for her. But this presumption may be rebutted by any sufficient evidence, as of unseaworthiness, or any other probable cause of loss.

SECTION XV.

COLLISION.

COLLISION is a peril of the sea which may deserve especial notice. In the chapter on Shipping, it has been stated, that, where a collision is caused by the fault of one of the ships, the ship in fault sustains the whole loss; that is, it must bear its

own loss, and must indemnify the other ship for the injury that ship sustains. It has been held that the insurers of the ship in fault are liable for the whole of this loss, because it is all caused by collision, which is a peril of the sea. But the Supreme Court of the United States has recently decided that the insurers are not held for more than the loss directly sustained by the ship they insure, that is, not for the amount that ship pays to the other ship for injury done to it.

SECTION XVI.

FIRE.

THIS peril also must come under the common rule, that the insurers will not be held unless it be caused by something extraordinary, and not belonging to the inherent qualities of the thing which takes fire.

The insurers would be held for any direct and immediate consequences of the fire; and for loss caused by the endeavor to extinguish it. It is, indeed, a general rule, that the insurers are liable for the loss or injury which is the natural, direct, and proximate effect of any peril insured against, although the loss itself may be only the effect of a preceding loss; as, if a part of the cargo was burned up, and another part was injured by water used to arrest the fire, the insurers would be liable for both parts.

SECTION XVII.

PIRACY, ROBBERY, OR THEFT.

THERE can be no piracy or robbery without violence; but this is not necessary to constitute the crime of theft. Piracy and robbery are most usually committed by strangers to the ship; they may, however, be committed by the crew; and the insurers are answerable for such a loss, unless it arose from the fault of the owner. Our policies now usually have the phrase 'assailing thieves." This excludes theft without violence, and all theft by those lawfully on board the vessel, as a part of the ship's company. If, after shipwreck, the property is stolen, the insurers are liable, and might be so if there were no insurance against theft, if this was a direct effect of the wrecking.