Parol evidence. Effect of superadded written words. 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 (m). 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 (n). 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 (o). 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 (p), or the port (q), sea (r), or country to which the ship is bound (s). 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 (†). (m) 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. (n) 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. (0) Parkinson v. Collier, Park on Insurance. (p) Scott v. Bourdillon, 2 N. R. 213; Mason v. Skurray, Park on Ins. 191. (2) Constable v. Noble, 2 Taunt. 403; Payne v. Hutchinson, ib. 405, note. (r) Brown v. Tayleur, 4 A. & E. 241; Uhde v. Walters, 3 Camp. 16. (s) 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. (t) 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. See also Gumm v. Tyrie, 4 B. & S. 680; S. C., Cam. Scacc., 6 B. & S. 298; Jessell v. Bath, L. R., 2 Ex. 267, decisions on bills of lading. Where a policy is set out upon the record, and comes in this form before the Court, no argument can be rested on this distinction, unless it is averred on the record that the difference exists. the judgment of Parke, B., in Alsager v. The St. Katharine Dock Company, ubi supra. See The printed words are not, however, to be rejected unless they are inconsistent with those in writing. Where the policy contained the usual clause in print that the ship was insured until she had been at anchor twenty-four hours in safety, and a written clause protected her for thirty days' stay, it was held that the latter should be computed from the expiration of the twenty-four hours (u). Thirdly, with respect to open, and valued policies, and voyage, time, and mixed policies. VALUED POLI CIES. A policy may be either open or valued. In the former, the OPEN, AND value of the subject-matter of the insurance is not stated in the policy, and must be proved after a loss (x). 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 (y). (u) Mercantile Marine Insurance Company v. Tetherington, 5 B. & S. 765; 34 L. J., Q. B. 11; see Lidgett v. Secretan, L. R., 5 C. P. 190. (r) Where, as it frequently happens, a shipowner is the proprietor of a line of vessels trading to and from particular ports, it is competent for him, in order that he may at no time be uninsured, to execute a series of running policies to attach as soon as each parcel of goods is shipped, and to succeed one another in order as the preceding ones become consumed. These policies are generally expressed to be 66 on goods by ship or ships as may be hereafter declared and valued." It is the duty of the assured to declare at the earliest opportunity to the underwriters the value of the shipments and the name of the vessel on which they are shipped. But the declaration is not a condition precedent, and if none is made the policy is then open instead of being valued. The shipments should be declared in the order of shipment. The assured is not allowed to declare some of the risks and remain his own insurer as to others. If by mistake, however, the shipment has been declared in a wrong order, the assured may correct the mistake even after loss. A declaration after loss has been held good where there was an absence of fraud, and the assured communicated with the underwriters at the earliest convenient opportunity. Gledstanes v. The Corporation of the Royal Exchange Assurance, 5 B. & In the absence of fraud this rule Amount recoverable in cases of total loss. A valued policy contains a clause to the following effect: "The Where the policy is valued, the insured, notwithstanding the 19 Geo. 2, c. 37 (a), is entitled to recover the whole valuation, although it exceeds his interest (b). If, however, it appears that the valuation has been adopted as a mere cover to a wager (c), or that the value has been fraudulently misrepresented (d), the policy is void, and the insurer cannot recover even to the extent of his actual interest. Another effect of a policy being valued is that, in cases of constructive total loss, the assured may obtain in some events more than a compensation for his actual loss (e). The general rule is, that where there are several insurances upon the same vessel, the valuation is conclusive only between the assured and the underwriters of that policy which contains the valuation. It is not enough for the underwriters on one of the other policies to show that the assured has received from another quarter the sum fixed by this valuation, unless this amounts to a real indemnity (f). Where, however, an owner effects two insurances, declaring the same value in each, he is bound by this sum, and cannot recover more on the two policies than the sum mentioned, although the real value of the vessel is more (g). And in a recent case it has been considered by the Court of Exchequer that where there are several valued (a) Ante, p. 441. (b) Lewis v. Rucker, 2 Burr. 1167; Shawe v. Felton, 2 East, 114. (c) See per Lord Mansfield in Lewis v. Rucker, 2 Burr. 1171. (d) Haigh v. de la Cour, 3 Camp. 319. (e) Allen v. Sugrue, 8 B. & C. 561; Young v. Turing, 2 M. & G. 593; Manning v. Irving, 1 C. B. 168; S. C. in error, 2 C. B. 784; 6 C. B. 391; 1 H. L. Cas. 287. (f) Bousfield v. Barnes, 4 Camp. policies on the same ship at different values, and the assured has, on a total loss, received under some of the policies part of the sums insured, he cannot, in an action upon another of the policies, recover more than the difference between the value mentioned in that policy and the sums he has actually received from the other insurers (h). If the loss is only partial, the value in the policy must still Where loss be looked to as the basis of the calculation (i). This mode of partial. valuation cannot, however, be applied to all cases of partial loss under policies which are, in form, valued. Thus, where a ship was to proceed to the coast of Africa on a barter voyage, and to bring back a cargo, and an insurance was effected covering both cargoes at a value named, and the ship was totally lost before she took in any homeward cargo, with twothirds of the outward cargo on board, it was held that the valuation mentioned in the policy applied substantially to a full cargo, and entitled the assured to the value named, only in the event of the loss of a substantially full cargo, and to an indemnity, in case of any partial loss, not exceeding that sum; and as the value of the whole intended cargo was, under the circumstances, unknown, the Court was of opinion that the ordinary mode of estimating a partial loss under a valued policy could not be adopted, but that the claim must be dealt with as if it were a claim to an ordinary indemnity under an open policy underwritten for the sum mentioned as the value of the whole cargo (k). An insurance may be effected either for a voyage, or for a VOYAGE, number of voyages, in either of which cases the policy is called MIXED POLIa voyage policy; or the insurance may be for a particular period, CIES. irrespective of the voyage or voyages upon which the vessel may be engaged during that period, and the policy is then called (h) Bruce v. Jones, 1 H. & C. 769. See, however, Wilson v. Nelson, 5 B. & S. 354. (i) Lewis v. Rucker, 2 Burr. 1171; see also the judgment of Lord Ellenborough in Forbes v. Aspinall, 13 East, 327; and in Bousfield v. Barnes, ubi supra; also Rickman v. Carstairs, 5 B. & Ad. 651; and Lobare v. Aitchison, 4 App. Cases, 755. A contrary opinion obtained at one time, and it was argued that if the loss was only partial, the value must be proved as in an open (k) Tobin v. Harford, 13 C. B., N. S. RE-INSUR ANCE AND DOUBLE IN- a time policy (). In other countries the length of the time for which a ship may be insured is not limited, but in England time policies made for a longer period than one year are, by statute, void ab initio (m). In addition to the two last-mentioned kinds of policy there is a third, which is usually called a mixed policy; as, for instance, where a ship is insured "from A. to B. for a year." This is in effect a time policy with the voyage specified, and runs for the whole period insured, irrespectively of the completion or non-completion of the voyage (n). A policy of this description does not attach, unless the ship sails upon the voyage named (0); but although the insurance is limited to commence at a certain time, it is not necessary that the ship should be then in the port specified as the terminus a quo (p). Where a policy was effected on goods to the value of 12,0007., in canal boats plying between London and Birmingham for twelve months, and the claim on the policy was warranted not to exceed a certain sum per cent., and it was stipulated that a given amount only was to be covered by the policy in any one boat, or any one trip, it was held that this was a continuing insurance, and applied to successive cargoes carried within the year, although goods exceeding 12,000l. in value had been carried (1). Re Fourthly, as to re-insurance and double insurance. insurance is where an underwriter procures the sum which he has insured to be insured again to him by another underwriter. This is allowed in all cases by the law of France, and of the other maritime countries of Europe ("), and also in America (s). In this country, the right to re-insure was limited by 19 Geo. 2, c. 37, s. 4, to cases in which the insurer was insolvent, became bankrupt, or died. In the two former cases the underwriter (1) In Dudgeon v. Pembroke, L. R., 9 Q. B. 581; 1 Q. B. D. 96; 2 App. Cas. 284, it was held that a policy from 22nd January, 1872, to 23rd January, 1873, was a time policy, although the printed words "at and from, " and " for this present voyage" were left in the printed form. (m) 30 Vict. c. 23, s. 8. (n) As to mixed policies see Gambles v. The Marine Insurance Company of Bombay, 1 Q. B. D. 507. (0) Way v. Modigliani, 2 T. R. 30. (p) Ib.; see also Martin v. Fishing Insurance Company, 20 Pickering (American) Rep. 389, cited in Phillips on Ins., Chap. 11, s. 1. (4) Crowley v. Cohen, 3 B. & Ad. 478. See further as to the construction of a policy covering the risks of river carriage, Joyce v. Kennard, L. R., 7 Q. B. 78. (r) See 3 Kent Com. 279; Arnould on Ins. 340, note (c), (2nd edit.). (s) Kent Com., ubi supra; Phillips on Ins., Chap. 3, s. 13. |