Mode of rances. money, by any person by that act made liable in certain events to provide passages or to pay such money, or in respect of any other risk under that act, is invalid by reason of the nature of the risk or interest (s). So, insurances effected by shipowners in respect of their liability for loss of life or personal injury, or damage or loss to goods, occurring without their actual fault or privity, are not invalid by nature of the risk (t). Policies are usually effected by brokers who are employed by effecting insur- the assured (u). Indeed it would be nearly impossible for the merchant or shipowner to act for himself in effecting insurances, owing to the complexity of the modern system of insurance, and the peculiar knowledge which is requisite in this matter. The broker is the agent of the assured to effect the policy; yet he is not solely his agent, for he is a principal to receive the premium from the assured, and pay it to the underwriter (v), and is liable to the latter for it (w). FORM AND Ordinary form of policy. The mode in which losses are settled by policy brokers will be mentioned at the close of this Chapter. Secondly, as to the form and construction of policies and their alteration. The form of marine policy used in this country has varied little for more than two hundred years. The following is the ordinary form now in use at Lloyd's :- (s) 18 & 19 Vict. c. 119, s. 55. (u) A person cannot sue on a policy (v) See the judgment of Lord Ellenborough in Jenkins v. Power, 6 M. & S. 287. The policy always contains an admission by the underwriter of the receipt of the premium, although the practice is, that it is not in fact paid, but allowed in account between the underwriter and him. The effect of this is, that there is no remedy for it against the assured, if it is not properly allowed by the broker. Ib.; Dalzell v. Mair, 1 Camp. 532. As to what constitutes a delivery of a policy, see Xenos v. Wickham, 13 C. B., N. S. 381; S. C., in Cam. Scacc., 14 C. B., N. S. 435. The fact that instructions have been given for an insurance and that a slip has been obtained, is not a sufficient compliance with an agreement to keep a ship insured. See Parry v. The Great Ship Company, 33 L. J., Q. B. 41. (w) See per Bayley, J., in Power v. Butcher, 10 B. & C. 340. insured, lost or not lost, at and from upon any kind of goods and merchandizes, and also upon the body, tackle, apparel, ordnance, munition, artillery, boat, and other furniture, of and in the good ship or vessel, called the whereof is master, under God, for this present voyage or whosoever else shall go for master in the said ship, or by whatsoever other name or names the said ship, or the master thereof, is or shall be named or called; beginning the adventure upon the said goods and merchandizes, from the loading thereof aboard the said ship, at upon the said ship, &c. Touching the adventures and perils which we the assurers are contented to bear, and do take upon us in this voyage; they are 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 of all other perils, losses, and misfortunes that have or shall come to the hurt, detriment or damage of the said goods and merchandizes, and ship, &c., or any part thereof. And in case of any loss or misfortune, it shall be lawful to the assureds, their factors, servants, and assigns, to sue, labour, and travel for (x), in and about the defence, safeguard and recovery of the said goods and merchandizes, and ship, &c., or any part thereof, without (x) As to the meaning of these words see The Great Indian Peninsula Railway Company v. Saunders, 1 B. & S. 41; S. C., in Cam. Scacc., 2 B. & S. 266, and Booth v. Gair, 15 C. B., N. S. 291. Stamps. prejudice to this insurance; to the charges whereof we the assurers will contribute, each one according to the rate and quantity of his sum herein assured. And it is agreed by us the insurers, that this writing or policy of assurance shall be of as much force and effect as the surest writing or policy of assurance heretofore made in Lombard Street, or in the Royal Exchange, or elsewhere in London. And so we the assurers are contented, and do hereby promise and bind ourselves, each one for his own part, our heirs, executors, and goods, to the assureds, their executors, administrators, and assigns, for the true performance of the premises, confessing ourselves paid the consideration due unto us for this assurance by the assured, at and after the rate of . In witness whereof, we the assurers have subscribed our names and sums assured in London. N.B.-Corn, fish, salt, fruit, flour, and seed are warranted free from average, unless general, or the ship be stranded. Sugar, tobacco, hemp, flax, hides and skins are warranted free from average, under five pounds per cent.; and all other goods, also the ship and freight are warranted free from average, under three pounds per cent., unless general, or the ship be stranded. It will be seen that the essential parts of the contract are as follows: The stamp; the name of the assured; the ship and master; the subject-matter of insurance; the voyage; the perils insured against; the premium; the memorandum; and the subscription. It will be convenient to notice, in the first place, the question of stamps, and then to deal with those of the above divisions which relate more particularly to the form of the policy, leaving the others, which are of a more general character, to be considered in a later part of this Chapter. The statutes at present in force which relate to the stamping of marine policies are the 35 Geo. 3, c. 63, and the 7 & 8 Vict. c. 21. The latter of these acts regulates the amount of duty payable (y). The policy must be stamped before it is executed (z), and therefore cannot be stamped upon payment of a penalty when it is given in evidence (a). All persons, whether brokers, under (y) See the schedule to this act, post, Appendix, p. xix. (-) 35 Geo. 3, c. 63, s. 14. (a) See the Com. Law Proc. Act, writers, or others, effecting an insurance without a stamp, are liable to a penalty of 100l. (b); and in such cases a broker cannot recover his fees. Where an over-assurance is made upon a homeward voyage, the Commissioners of Stamps may, in some cases, return so much of the duty as has been paid on the excess (c). Both of the above acts contain exceptions enabling the officers of the two chartered companies to make agreements to insure upon labels or slips of unstamped paper, provided they are truly dated, and a stamped policy is executed within three office days (d). This provision does not, however, give any validity to these documents, nor can they be adverted to in order to explain the meaning of the parties (e). The effect under the Stamp Acts of the alteration of a policy is mentioned below (f). the assured. The Legislature has provided that it shall not be lawful to The name of effect a policy on any ship, goods, or other property, unless the name or the usual style and firm of dealing of one or more of the persons interested, or of the consignor or consignee of the property insured, or of the person residing in Great Britain who receives the order for effecting the policy, or of the person who gives the order to the agent immediately employed to effect it, is inserted in it (g). This enactment has met with a liberal construction; and it has been held that a policy effected in the name of the general agents of the consignor, who receive a cargo upon the refusal of the consignee to accept it, is valid; and that if, acting upon the clear intention of the consignor, although without his express authority, they effect an insurance as his agents, or if their act is subsequently ratified by their principal, they may recover on the policy (h). Nor is it neces 1854, 17 & 18 Vict. c. 125, ss. 28, 29, and the proviso at the conclusion of the latter section. (b) 35 Geo. 3, c. 63, ss. 15, 16 and 17. By these sections the penalty imposed was 500l., but it is reduced to 1007. by the 7 & 8 Vict. c. 21, s. 4. See also Roderick v. Hovil, 3 Camp. 103. See as to where additional stamps may be imposed on mutual insurance policies the 9 Geo. 4, c. 49, s. 1. (c) 35 Geo. 3, c. 63, s. 10. (d) Ib. s. 18, and 7 & 8 Vict. c. 21, s. 4. (e) See the judgment in Pattison v. M.P. Mills, 2 Bligh, N. S. 562. An earlier (f) See post, p. 340. (h) Wolff v. Horncastle, 1 B. & P. Ꮓ The ship and master. sary that an agent effecting the policy should be described in it as such (i). Where a broker had received directions from the owner of goods to insure them, and being unable to do so caused the risk to be indorsed upon a general policy which had been previously effected by the agents of the broker, in their own names, upon goods" to be valued and declared as interest might appear," and this indorsement was initialed by the underwriter, and the goods owner was informed of it, it was held that the policy not having been made by the goods owner, or by any one authorized on his behalf at the time, and not having been ratified by him, he could not sue upon it (k). There is no express regulation in this country which requires that the name of the vessel, or of her master, shall be inserted in the policy; it has been usual, however, to insert the names, since a knowledge of them is often material for the estimation of the risk to be insured. A policy on a ship "called the American ship President, or by whatever other name the same ship should be called," was held to be a valid policy on a vessel which was an American ship, and of which the real name was “ The President" (1). The validity of insurances upon "ship or ships" has long been established; and it has been held that where a cargo is so insured, and several vessels are employed in its transportation, the assured may apply the insurance to any of them (m). It has been doubted whether such an insurance does not amount to a warranty that the party effecting it is ignorant of the name of the vessel; but however this may be, it is clear that if the effect of withholding the name is to deprive the underwriter of any 274; Hagedorn v. Oliverson, 2 M. & S. (i) De Vignier v. Swanson, 1 B. & P. against persons who are engaged as partners in underwriting, though each has signed in his own name for a distinct sum. Brett v. Beckwith, 26 L. J., Chan. 130. (k) Watson v. Swann, 11 C. B., N. S. 756. The Court in this case abstained from expressing any opinion as to whether an action could not have been maintained by the broker as trustee for his principal. (1) Le Mesurier v. Vaughan, 6 East, 382, and Hall v. Molineaux, cited ib. 385; see also Clapham v. Cologan, 3 Camp. 382. (m) Kewley v. Ryan, 2 H. Bl. 343; Henchman v. Offley, ib. 345, note. |