material information, the concealment avoids the policy (n). Where an insurance is on cargo it will extend, although the ship in named in the policy, to any other ship into which it may be properly shifted by the master (o). After naming the ship and appurtenances, the policy, as we have seen, mentions the master. This portion of the policy is so simple, and the liberty given by it to the assured is so extensive, that no questions have arisen out of it, nor does it call for further notice. The premium is the amount paid by the assured to the under- The premium. writer, as a consideration for his undertaking the risk. The Stamp Act, 35 Geo. 3, c. 63, s. 11, requires that the premium "paid, given or contracted for upon the insurance," should be expressed in the policy. The broker is, as we have seen, the person to whom the underwriter looks for its payment (p). As between the assured and the underwriter, the receipt which is always inserted in the policy is conclusive evidence of the receipt of the premium by the latter (9); except, indeed, in the case of fraud (r). tion. The Stamp Act, 35 Geo. 3, c. 63, s. 11, requires also that The subscripthe names of the subscribers and underwriters, and sums insured, should be expressed or specified on the policy; otherwise it is void. It is not necessary, however, that a policy underwritten by a company or co-partnership should be signed by every member; it is sufficient if it be subscribed in the name of the firm (s). mon law. Any material alteration in a policy, as in any other contract, Alteration of mercantile instrument, or deed, even although made by a policy at comstranger, has the effect of making it void, as against all parties who did not authorize the alteration (t). A person, therefore, (n) Lynch v. Hamilton, 3 Taunt. 37, confirmed on error; Lynch v. Dunsford, 14 East, 494. (0) Plantamour v. Staples, 1 T. R. 611, note. See of transhipment generally ante, p. 281, and Oliverson v. Brightman, 8 Q. B. 781. (p) Ante, p. 334. (q) Dalzell v. Mair, 1 Camp. 532; De Gaminde v. Pigou, 4 Taunt. 246. (r) Foy v. Bell, 3 Taunt. 493; see also Mavor v. Simeon, ib. 497. (s) Reid v. Allan, 4 Ex. 326; Dowdall v. Allan, 19 L. J., Q. B. 41. (t) Master v. Miller, 4 T. R. 320; S. C., 1 Smith, L. C. (5th edit.) 776; Fairlie v. Christie, 7 Taunt. 416; Campbell v. Christie, 2 Stark. 64; Forshaw v. Chabert, 3 B. & B. 158; Davidson v. Cooper, 11 M. & W. 778; S. C., 13 M. & W. 343; Croockewit v. Fletcher, 1 H. & N. 893. Under stamp acts. who desires a change in the terms of the policy should obtain the concurrence of the other parties to it before the insertion of the alteration. A material alteration, however, made by the assured cannot be set up by him, and will not entitle him to claim a return of premium (u). An alteration which is immaterial does not vacate the policy, and those parties who did not consent to it remain liable on the original contract (v). The most usual mode of making a material alteration in a policy is by a memorandum on the back of it; and the signatures or initials of the parties are commonly appended. If the alteration be required for the purpose of remedying an error, a Court of Equity will effect it without the consent of the parties (w); but the intention of the instrument must be apparent (x). The 35 Geo. 3, c. 63, s. 13, enacts, that the provisions of that act shall not prevent "the making of any alteration which may lawfully be made in the terms or conditions of any policy of insurance, duly stamped as aforesaid, after the same shall have been underwritten," or render necessary" any additional stamp duty by reason of such alteration, so that such alteration be made before notice of the determination of the risk originally insured, and the premium or consideration originally paid or contracted for shall exceed the rate of ten shillings per cent. on the sum insured, and so that the thing insured shall remain the property of the same person or persons, and that such alteration shall not prolong the term insured beyond the period allowed by this act, and so that no additional or further sum shall be insured by reason or means of such alteration." This provision has received a liberal construction (y). A mistake made in the ship's name may be rectified (z); the time of sailing may be altered or extended (a); and a change of destination may be inserted, if made before notice of the determination of the risk (b). But where an insurance made upon "the ship and outfit" was afterwards altered by consent, by substituting the (u) Langhorn v. Cologan, 4 Taunt. 330. (v) Sanderson v. M'Cullom, 4 J. B. Moore, 5; Sanderson v. Symonds, 1 B. & B. 426. (w) Motteux v. London Assurance Company, 1 Atk. 545. (x) Henkle v. Royal Exchange Assurance Company, 1 Ves. 317. (y) See Brockelbank v. Sugrue, 1 B. & Ad. 88. (z) Robinson v. Touray, 3 Camp. 158; 1 M. & S. 217; see Cole v. Parkin, 12 East, 471. (a) Kensington v. Inglis, 8 East, 273; Hubbard v. Jackson, 4 Taunt. 169; Weir v. Aberdeen, 2 B. & A. 320; Ridsdale v. Shedden, 4 Camp. 107. (b) Ramstrom v. Bell, 5 M. & S. 267; Brockelbank v. Sugrue, ubi supra. words "the ship and goods," it was held that a new stamp was necessary (c). Where, however, a policy was effected, by mistake, on the goods instead of on the ship, and the parties never intended to enter into the contract in its original form, it was held that an alteration making the terms of the contract agree with the real intention of the parties did not render a new stamp requisite (d). A policy cannot be altered so as to bring it within a class requiring a higher duty (e). Where the alteration renders a new stamp necessary the parties cannot recover upon the policy in its original state; since the alteration, although ineffectual to form a new agreement, proves an intention to abandon the former contract (ƒ). Where there is no complete delivery of a policy under seal to the assured, the insurers are not liable on it (g). A policy of insurance is considered as a contract uberrima Construction of fidei, and always receives a liberal construction for the benefit the contract. of trade, and for the assured (h). The same rule of construction applies, however, to it as to all other instruments, namely, that it is to be construed according to its sense and meaning, as collected in the first place from the terms used in it, which terms are themselves to be understood in their plain, ordinary and popular sense, unless they have generally in respect to the subject-matter, as by the known usage of trade, or the like, acquired a peculiar sense distinct from the popular sense of the same words; or unless the context evidently points out that they must in the particular instance, and in order to effectuate the immediate intentions of the parties to that contract, be understood in some other special and peculiar sense (i). Where, therefore, the policy is ambiguous in its terms, or contains nothing which expressly rebuts the construction, it will be understood as referring to what is usually done by such a ship, (c) Hill v. Potter, 8 East, 373. (d) Sawtell v. Loudon, 5 Taunt. 399. (e) See the judgment of Lord Tenterden in Brockelbank v. Sugrue, 1 B. & Ad. 88. (f) French v. Patten, 1 Camp. 721; S. C., 9 East, 351. (g) Xenos v. Wickham, 13 C. B., N. S. 381; S. C., in Cam. Scacc., 14 C. B., N. S. 435. In this case the policy had been actually executed by the directors of the company, but had been retained by them in their possession, and there (h) 2 W. Saund. 200, n. (1); and the (i) Per Lord Ellenborough in Roberts v. French, 4 East, 135; see also Trueman v. Loder, 11 A. & E. 589. with such a cargo, on such a voyage (j); for it is presumed that every underwriter is acquainted with the practice of the trade in which he insures (k). Thus, evidence was held to be properly received of a custom that, under the usual form of policy, underwriters are not liable for general average in respect of the jettison of goods stowed on deck (1). If the usage is general, the policy is governed by it, although the trade which it affects is of recent origin (m). As, however, evidence of usage is admissible only upon the ground that the parties contracting are presumed to have been aware of its existence, and consequently to have entered into the policy subject to its effect, the usage must be general, either to all trades, or to the particular trade in respect of which the insurance is made. An usage, therefore, at Lloyd's is not binding upon an assured when it is not known to him, although his broker may have been aware of it (n). If the terms of a policy are plain and unambiguous, evidence of an usage which would contradict instead of explaining them is inadmissible. Thus, where a policy on a ship was in the usual form, including "boats," evidence of an usage not to pay upon a loss of boats slung outside upon the quarters of the vessel was excluded (0). So, where a policy stated that the insurance on the ship should continue until she was moored twenty-four hours, and on the goods till safely landed, it was held that evidence of an usage that the risk on the goods as well as on the ship expired in twenty-four hours was not admissible (p). (j) See the judgment of Lord Mansfield in Pelly v. The Royal Exchange Assurance Company, 1 Burr. 350. In a recent case it was held, that the construction of a policy could not be varied by a correspondence between the assured and their agents who effected the insurance, which was not referred to in the policy, but of which the underwriters had notice, Halhead v. Young, 6 E. & B. 312. (k) See per Lord Mansfield in Noble v. Kennoway, 2 Doug. 512; see also Letheulier's Case, 2 Salk. 443; Salvador v. Hopkins, 3 Burr. 1707; Grant v. Paxton, 1 Taunt. 463; Robertson v. Clarke, 1 Bing. 445; Vallance v. Dewar, 1 Camp. 503, and the cases cited ib. 505, note; Chaurand v. Angerstein, Peake, 43; Gould v. Oliver, 4 Bing. N. C. 134; Milward v. Hibbert, 3 Q. B. 120; Lewis v. Marshall, 7 M. & Gr. 729; and ante, p. 231. (1) Miller v. Tetherington, 6 H. & N. 278; S. C., in Cam. Scacc., 7 H. & N. 954. (m) Noble v. Kennoway, ubi supra. (n) Gabay v. Lloyd, 3 B. & C. 793; Bartlett v. Pentland, 10 B. & C. 760; Scott v. Irving, 1 B. & Ad. 605; Stewart v. Aberdein, 4 M. & W. 211; Mackintosh v. Marshall, 11 M. & W. 116; Partridge v. Bank of England, 9 Q. B. 396; the judgment of Parke, B., in Bayliffe v. Butterworth, 1 Ex. 428; and Sweeting v. Pearce, 7 C. B., N. S. 449; S. C., in Cam. Scacc., 9 C. B., N. S. 534. (o) Blackett v. The Royal Exchange Assurance Company, 2 C. & J. 244; Crofts v. Marshall, 7 C. & P. 597; see also Hall v. Janson, 4 E. & B. 500; Ross v. Thwaite, Backhouse v. Ripley, cited in Park on Insurance. (p) Parkinson v. Collier, Park on Insurance. Parol evidence may be resorted to for the purpose of explaining words which, being technical or local, have acquired a peculiar meaning; as, for instance, words relating to the articles of commerce which form the cargo (q), or to the port (r), sea (s), or country to which the ship is bound (t). If, as is usually the case, part of the policy is printed and part written, it has been held that the words superadded in writing are entitled to have a greater weight attributed to them than the printed words; inasmuch as the written words are considered as more immediately the language of the parties (u). Thirdly, with respect to open, and valued policies, and voyage, OPEN, AND time, and mixed policies. A policy may be either open or valued. In the former the value of the subject-matter of the insurance is not stated in the policy, and must be proved after a loss. In the latter, to prevent the necessity of proving the actual value in the event of a loss, a value agreed upon by the parties is mentioned in the policy, and is conclusive between them in case of loss (v). Α valued policy contains a clause to the following effect: "The said ship, &c., goods and merchandize, &c., for so much as concerns the assureds, by agreement between the assureds and assurers in this policy, are and shall be valued at £ If the amount of the valuation is not inserted in the policy, but is stated to be as thereafter may be declared, and no declaration is made before a loss, the policy is not void, but is treated as an open policy (w). Where the policy is valued, the insured, notwithstanding the 19 Geo. 2, c. 37 (x), is entitled to recover the whole valuation, although it exceeds his interest (y). If, however, it appears that (q) Scott v. Bourdillon, 2 N. R. 213; Mason v. Skurray, Park on Ins. 191. (r) Constable v. Noble, 2 Taunt. 403; Payne v. Hutchinson, ib. 405, note. (s) Brown v. Tayleur, 4 A. & E. 241; Uhde v. Walters, 3 Camp. 16. (t) Moxon v. Atkins, 3 Camp. 200; Robertson v. Clarke, 1 Bing. 445; see also Parr v. Anderson, 6 East, 207; Robertson v. Jackson, 2 C. B. 412, and ante, p. 231. (u) See the judgment of Lord Ellenborough in Robertson v. French, 4 East, 136; also Alsager v. The St. Katharine Dock Company, 14 M. & W. 794. Where a policy is set out upon the record, and comes in this form before the Court, no (v) See the judgment of Lord Ellen- (w) Craufurd v. Hunter, 8 T. R. 15, note; Harman v. Kingston, 3 Camp. 150. (x) Ante, p. 333. (y) Lewis v. Rucker, 2 Burr. 1167; Shawe v. Felton, 2 East, 114. VALUED POLI CIES. |