same time as, or subsequent to, the ship insured, has arrived before her (o), he must communicate each of these facts to the underwriter.

Where a vessel insured sailed from Elsineur for Hull, and six hours afterwards her owner followed in another ship, and met with rough weather, but when he reached Hull his vessel had not arrived, it was held that he was bound to communicate these facts to the underwriter (p). So, where two ships left Malaga for London about the same time, and when the owner of one of them insured her it was known at Lloyd's that the other ship had arrived three days before, but the insurer also knew that the vessels had met and parted company off Oporto in a gale of wind, and did not communicate this to the underwriters, it was held that this concealment avoided the policy (q).

A merchant resident at Sydney shipped goods for England on board a ship, and by another vessel, which sailed after her, wrote to an agent in England, and desired him, if he received. the letter before the ship carrying the goods arrived, to wait for thirty days, in order to give her every chance of arrival, and then to effect an insurance on the goods. The agent, after waiting more than thirty days, employed a broker to effect the insurance, and handed to him the letter. The broker told the underwriters the date of the sailing of the ship that carried the goods, and also the date of the letter, but he did not mention when the letter was received, or the order to wait thirty days after the receipt of it, before effecting any insurance. Two vessels which had left Sydney after the ship which carried the letter, arrived in England shortly before the policy was effected. The Court expressed a strong opinion that a jury would be bound to hold that the letter was material, and, therefore, that the concealment of its contents avoided the policy. They also thought, that as the underwriter might naturally have supposed that the letter came by one of the two ships which had arrived shortly before the policy was made, the time when it was received was a material fact which should have been communicated to him (r).

The assured is not excused from communicating material

(0) McAndrew v. Bell, 1 Esp. 372.
(p) Kirby v. Smith, 1 B. & A. 672.
(q) Westbury v. Aberdein, 2 M. & W.

267.

(r) Rickards v. Murdock, 10 B. & C. 527. As to the reception of evidence in this case, see post, p. 401.

What need not be communicated.

information because he has received no regular or authentic advice, but only a doubtful account (s), or because his information is in the form of a general rumour merely (t); for the underwriter is entitled to the exercise of his own discretion as to the value of such reports.

The assured is, however, only bound to communicate those facts which lie peculiarly within his knowledge. He is not bound to mention general topics of speculation, the knowledge of which may fairly be supposed to be common to both parties; thus, he is not bound to mention to the underwriter the causes natural or political which may render the voyage dangerous; such, for instance, as the probabilities of bad weather, the difficulties of the particular voyage, the chances of war, or the like; for with respect to matters of this kind, different men argue differently, and the means of information are open to both the contracting parties (u). So the underwriters are bound to know any general usage which affects the employment of ships in any particular trade (x); but not an usage which is not universal, but only occasional (y).

The assured is, moreover, not bound to inform the underwriter of facts which the latter may by inquiry and due diligence learn from the ordinary sources of information. Thus, where the shipping lists at Lloyd's were in the hands of the underwriters, it was held that the assured was not bound to disclose to them material facts mentioned in those lists (z). But the same effect is not given to the Foreign List at Lloyd's, which is hung up only in the inner room (a). Nor is the assured bound to inform the underwriters of all the bygone calamities which the ship may have met with, if these earlier matters do not affect her then condition (b).

(s) De Costa v. Scandret, 2 P. Wms. 170.

(t) Durrell v. Bederley, Holt, 283; Lynch v. Hamilton, 3 Taunt. 37.

(u) See the judgment of Lord Mansfield in Carter v. Boehm, 3 Burr. 1910; see also Planché v. Fletcher, 1 Doug. 251.

(x) Vallance v. Dewar, 1 Camp. 503; Ougier v. Jennings, ib. 505, note; Kingston v. Knibbs, ib. 508, note; Moxon v. Atkins, 3 Camp. 200; Da Costa v. Edmunds, 4 Camp. 142; Stewart v. Bell, 5 B. & A. 238; see also the cases cited

And it is a general rule that

the assured is only bound to communicate facts. He is not bound to disclose to the underwriter any information he may have received as to the sensations or apprehensions produced in the minds of others by those facts (c).

The assured is supposed to know facts which are known to Concealment his agent. If, therefore, material facts are concealed by the by agent. agent from the shipowner, and by him innocently and necessarily not communicated to the underwriter, the policy is still avoided (d).

The materiality of the fact concealed depends, as in cases of Materiality how judged of. misrepresentation (e), upon the effect it is calculated to produce on the mind of the underwriter. If, therefore, the information withheld would have induced the underwriter to decline the insurance or to charge a higher premium, its concealment is fatal to the policy, although it may afterwards appear that it was untrue; or the loss may arise from a cause totally distinct from the subject-matter of the concealment. Thus, where the assured failed to communicate to the underwriter the intelligence which he had received, that his ship had been seen deep laden and leaky, the concealment was held to vitiate the insurance, although the news was false, and the loss arose not from the supposed perils, but from a capture (ƒ). The question, in cases of concealment, always is, whether, looking at all the circumstances at the time the policy was underwritten, there was a fair representation, or a concealment either fraudulent, that is designed, or though not designed, varying materially the object of the policy, and changing the risk understood to be run (g).

The question whether, in actions on policies, brokers or other How far the skilled witnesses can be called to speak to the materiality of any underwriters is opinion of information which is withheld by the assured, has given rise to evidence. considerable discussion and to much difference of opinion. In

LOSSES AND
THEIR INCI-

DENTS.

some cases such evidence has been admitted upon the same principle as that upon which the testimony of persons skilled in particular sciences, or conversant with the practice of particular trades, is receivable (h); in others it has been rejected, upon the ground that the question is one of opinion merely, and not of scientific knowledge, and that to admit such evidence would be to place the witnesses in the position of the jury (i).

Probably the true rule is, that the admissibility of such evidence depends upon the facts of each particular case; and that where the opinion of the witness is tendered upon a subject which requires peculiar study or experience, in order to be acquainted with it, the evidence should be received; but that where the opinion is offered upon a matter of general knowledge, as to which the jury are equally competent to form a judgment, as, for instance, upon the question whether it was a material fact, that a vessel which had sailed long after the ship insured had arrived in England before the policy was effected (k), or when it relates to facts in respect of which no aid can be obtained by previous experience, so that the opinion of the witness, if rightly formed, can be drawn only from the same premises upon which the Court and jury have to determine the cause (1), the evidence should be rejected (m).

The losses which arise from the various perils insured against be either total or partial; they are total when the subjectmay Losses total or matter of the insurance is wholly destroyed, or injured to such partial. an extent as to justify the owner in abandoning to the insurer, and partial when the thing insured is only partially damaged, or where, in the case of an insurance on goods, the owner of them is called upon to contribute to a general average (n).

Different kinds of total losses.

Total losses may again be divided into actual and construc

(h) Berthon v. Loughman, 2 Stark. 258; Chaurand v. Angerstein, Peake, 43; Littledale v. Dixon, 1 N. R. 151; Hayward v. Rodgers, 4 East, 590; Rick. ards v. Murdock, 10 B. & C. 527; Chapman v. Walton, 10 Bing. 57. This is the view which appears to have been adopted in America. See Duer on Ins., Lect. 14, ss. 26 and 27, and the judgment of Story, J., in McLanahan v. The Universal Insurance Company, 1 Peters (American) Rep. 188; see also 1 Ar

nould on Ins. 620 (2nd edit.).

(i) Carter v. Boehm, 3 Burr. 1905; Durrell v. Bederley, Holt, 283; Campbell v. Rickards, 5 B. & Ad. 840. See also Phillips on Ins. c. 28, s. 8.

(k) As in Campbell v. Rickards, ubi supra.

(1) As in Carter v. Boehm, ubi supra. (m) See the notes to Carter v. Boehm, in 1 Smith's L. C. 486 (5th edit.), and Duer on Ins., Lect. 14, note 10. (n) See ante, p. 319.

losses.

tive total losses. Actual total losses arise where the ship or Actual total cargo is totally destroyed or annihilated, or where they are placed by any of the perils insured against in such a position. that it is wholly out of the power of the assured to procure their arrival (o).

Thus, where by means of a peril insured against, a ship founders at sea, or is actually destroyed, or even where she is so much injured that she ceases to retain the character of a ship, and becomes a wreck, or a mere congeries of planks, the loss is total and actual, although the form of a ship may still remain; and in these cases the assured may recover for a total loss without abandonment (p).

So, goods are considered as actually lost if they are wholly lost to the owners by plunder and sale, capture or the like (q); or if they are so much injured by sea damage that they have lost their specific character; as, for instance, where they exist only as a nuisance, so that it is necessary to throw them overboard (r); or even, if by reason of such injury having commenced, it becomes certain that they could never have reached their destination unchanged in specific character, and it is consequently necessary to sell them at an intermediate port. Thus, where a cargo of hides was found to be so much damaged by the sea-water which had penetrated through a leak into the

(0) See per Lord Abinger in Roux v. Salvador, 3 B. N. C. 286.

(p) Cambridge v. Anderton, 2 B. & C. 691. See also Read v. Bonham, 3 B. & B. 147; Green v. Royal Exchange Assurance Company, 6 Taunt. 68; Idle v. Royal Exchange Assurance Company, 8 Taunt. 755; Robertson v. Clarke, 1 Bing. 445; and the judgment of Maule, J., in Moss v. Smith, 9 C. B. 102; Fleming v. Smith, 1 H. of L. C. 513; and Philpott v. Swann, 11 C. B., N. S. 270. In Cambridge v. Anderton, the ship, after she was sold by the master, was actually got off the rocks and repaired by the purchaser; but the Court appears to have decided the case on the supposition that she was a mere wreck; and, moreover, no abandonment was possible, the intelligence of the loss and of the sale having reached the owners at the same time. See the judgments of Lord Campbell in Fleming v. Smith, and in Knight v. Faith, 15 Q. B. 663.

(q) Mullett v. Shedden, 13 East, 304; Mellish v. Andrews, 15 East, 13; Bon

drett v. Hentigg, Holt, 149.

(r) Dyson v. Rowcroft, 3 B. & P. 474; Cologan v. London Assurance Company, 5 M. & S. 447; Navone v. Haddon, 9 C. B. 30; see also the judgment of Lord Kenyon in Burnett v. Kensington, 7 T. R. 222. An early case, Cocking v. Fraser, 4 Doug. 295, S. C., 1 Park on Ins. 181, is to some extent inconsistent with these decisions, and Lord Mansfield is supposed to have laid down the rule in it, that there must be an absolute destruction of the goods in order to constitute a total loss. It is, however, to be observed, that in this case the goods actually arrived at the end of the voyage without change of specific character; the fish actually came to port as fish, although it was putrid. The American Courts act more strictly than our Courts do upon the rule that there must, in order to constitute an actual total loss, be a destruction of the thing insured. See 3 Kent Comm. 296, and the cases cited, 2 Phillips on Ins. 483, 488.