Inception of risk on freight. So the interest of persons who have disbursed money for the use of the ship abroad, and taken in respect of their advances a bill of the captain's drawn against freight, may be insured as an advance on account of freight (o). In accordance with the rule already mentioned (p), the assured, in order to recover upon the policy, must show that at the time of the loss he had an insurable interest in the freight. Where the freight arises from the transportation of goods, the policy does not usually attach until the goods are actually shipped (2), or at least until part of the goods are on board, and the residue is ready to be shipped (r); nor unless a binding contract has been entered into for the loading of the goods (§), and the vessel was in a condition to receive them (t). If the ship have part only of her cargo on board at the time of the loss, the owner can recover in respect of that part, even although the insurance be by a valued policy (u). Where the owner of a ship bought a cargo which was seven miles from the port in which the ship was, but ready to be sent on board, and the ship, after being ready to receive the cargo, was lost in an endeavour to get out of dock, it was held that a policy on freight attached (x). There is in practice, although not in principle, a material distinction on this head between the freight which accrues under a charter-party and that which may be earned independently of a charter. In the former case the policy attaches as soon as the ship has sailed under the charter-party, for thereupon an inchoate right to freight arises, although no portion of the cargo may have been taken on board (y). And where an owner having contracted to carry passengers, and to make alterations in the ship for their convenience, had shipped water for them, and commenced the alterations, it was held that this was an inception of the risk (≈). Where a shipowner insured the freight of a ship chartered (0) Wilson v. Martin, 11 Ex. 684. (9) Tonge v. Watts, 2 Str. 1251. (s) Forbes v. Aspinall, 13 East, 323; (t) Williamson v. Innes, 8 Bing. 81, note; S. C., 1 M. & Rob. 88; Devaux v. Janson, 5 B. N. C. 519. (u) Forbes v. Aspinall, ubi supra. (x) Devaux v. Janson, ubi supra. (y) Thompson v. Taylor, 6 T. R. 478; Atty v. Lindo, 1 N. R. 236; Horncastle v. Suart, 7 East, 400; Davidson v. Willasey, 1 M. & S. 313; Barber v. Fleming, L. R., 5 Q. B. 59; Foley v. The United Fire Insurance Company, L. R., 5 C. P. 155. (z) Truscott v. Christie, 2 B. & B. 320. under a charter-party, which it was agreed was to be cancelled in the event of prohibition preventing loading, and the ship sailed on the voyage, but, before her arrival at the first of the loading ports mentioned in the charter-party, the ports of loading were closed by a foreign Government, it was held that the charterparty had been put an end to, and that the shipowner was entitled to recover against the underwriters (a). Where a policy is on freight advanced in respect of the whole voyage described in the policy, and a portion of the freight is advanced after part of the voyage has been performed, this sum may be recovered against the underwriters, although it was paid before the policy was effected; since, in this case, the whole of the freight must be considered to have been at risk at the time of the loss (b). vanced to Money advanced by the captain during the voyage for the Money aduse of the ship (c), and "commissions and privileges" payable ship and to him (d) or to the consignee (e) may be insured. In the two commissions. latter cases it must be shown, as in the case of insurance on freight, that the interest of the insurer has attached in respect of the goods out of which the profits are expected (f). The lender of money on bottomry, or respondentia, may also insure to the extent of his interest, but the policy must be expressed to be on bottomry, for such an interest is not covered by an insurance on the ship or goods (g). The borrower on bottomry can only insure upon the value of the ship or cargo, minus the amount which has been advanced; for it is obvious that without this deduction the insurance would exceed the amount of his interest in the subject-matter insured (). Loans on bottomry. terests. The interests which have been already mentioned are those Other inwhich in practice most frequently form the subject-matter of insurances; any interest, however, in the safety of a thing, or any liability which may be incurred is sufficient to create the (a) Adamson v. The Newcastle Steam Freight Insurance Association, 4 Q. B. D. 404. (b) Ellis v. Lafone, 8 Ex. 546. Loss of freight by reason of sea damage is insurable. Griffiths v. Bramley Moore, 4 Q. B. D. 70. (c) Gregory v. Christie, 1 Park on Ins. 14. (d) King v. Glover, 2 N. R. 206. M.P. (e) Flint v. Le Mesurier, 2 Park on (f) Knox v. Wood, 2 Park on Ins. 405. H H Seamen's wages. right to insure. Thus, it has been held that the owners of a vessel, who were answerable for any loss occurring by the negligence of their crew in bringing the cargo on board, might insure the goods against this risk (). So the owners may insure against their liability for any damage which the ship insured may, by running down or otherwise, do to any other vessel (i), as well as for passage or compensation monies for which they are made liable by the Passengers Acts of 1855 and 1863 (k). In a recent case, the owner of a vessel, which, together with her cargo, had been deserted by the crew, and brought into port by salvors, having obtained possession of her, put in bail in the Court of Admiralty in a suit brought by the salvors; the ship afterwards sailed again, and together with the cargo was totally lost, and the owner of the ship was obliged to pay the amount of the salvage; it was held that he had an insurable interest in the average contribution due to him from the owners of the cargo on account of the salvage, and that he was entitled to recover this amount under a policy effected before the loss for the purpose of covering what he might have to pay under the bail bond (1). The Merchant Shipping Act, 1862, limits, as we have seen (m), the liability of the owners of ships, whether British or foreign, in cases of loss of life or personal injury, and of damage to ships and goods which occur without their actual fault or privity; and it is expressly provided by that act that insurances effected against any of these events, occurring without the owner's fault or privity, shall not be invalid by reason of the nature of the risk (n). The law of England, as of most other countries, forbids, on grounds of public policy, the insurance of seamen's wages, or of any equivalent which they may be entitled to receive in their stead (o). This rule does not, however, apply to the wages of (h) Walker v. Maitland, 5 B. & A. 171. (i) Thompson v. Reynolds, 7 E. & B. 172. See supra, p. 446. (k) 18 & 19 Vict. c. 119, s. 55 (Appendix, p. cxcviii.); 26 & 27 Vict. c. 51, s. 18 (Appendix, p. ccxlvii.); and Gibson v. Bradford, 4 E. & B. 586; Willis v. Cooke, 5 E. & B. 641, which were decided on very similar sections in the 15 & 16 Vict. c. 44. (1) Briggs v. The Merchant Traders' Association, 13 Q. B. 167. (m) See ante, p. 80. (n) M. S. Act 1862, ss. 54, 55. See ante, p. 442. (0) Webster v. De Tastet, 7 T. R. 157; Park. on Ins. 14; see the judgment of Sir John Nicholl in The Lady Durham, 3 Hagg. 201. the master, or to the commission to which he is entitled, or to any share which he may have as part owner (p). We have already seen that the attempt to enter a blockaded Blockade. port is not an illegal act by the municipal law of England. It follows as a consequence that insurances effected in this country, either on ships to be employed, to the knowledge of the underwriters, in running a blockade, or on their cargoes, or on the profits expected to be derived from such an adventure, are not void (q). All insurances are invalid which are intended to cover adven- Illegal trading. tures, which are in violation of the statutory provisions as to convoy, neutrality, trade, or revenue of the country in which the insurance is effected (r). Thus, a policy effected in England upon a voyage which is contrary to the navigation laws, or in breach of the customs laws of this country, is void (s). So also would be an insurance prohibited by the articles of a treaty to which the sovereign of this country is a party (t). It is not necessary to mention more fully the cases depending upon the system established by the Navigation Acts, which are now repealed (u). With respect to contracts in violation of the customs laws, it has been held that if a small portion only of the goods insured be contraband the whole policy is vitiated, and the assured is precluded from recovering any part of his loss (a). And it is a general rule, (r) Wainhouse v. Cowie, 4 Taunt. 178; Darby v. Newton, 6 Taunt. 544; Johnston v. Sutton, Doug. 354. In cases of violation of statutory provisions as to convoy, it must be shown, if the policy was effected by an agent, that the assured authorized the infringement of the statute. Carstairs v. Allnutt, 3 Camp. 497; Metcalf v. Parry, 4 Camp. 125; Thornhill v. Lance, ib. 231. (s) See Morck v. Abel, 3 B. & P. 35; Chalmers v. Bell, ib. 604; Lubbock v. Potts, 7 East, 449; Gray v. Lloyd, 4 Taunt. 136; Campbell v. Innes, 4 B. & A. 426; Thompson v. Irving, 7 M. & W. 367; Suart v. Powell, 1 B. & Ad. 266. All these cases were decided upon statutes which are now repealed; but the principles laid down in them (x) Parkin v. Dick, 2 Camp. 221; н н 2 Effect of foreign that if there is an illegality in any part of an entire risk, the whole is thereby vitiated (y). It has been often doubted how far the legality of an insurance revenue laws. ought to be affected by the fact that it is designed to cover a voyage in contravention of the revenue laws of a foreign state; that is to say, of a country other than that in which the policy is underwritten. Upon this point the most eminent jurists have differed (). In England it has long been settled, that although all subjects are bound by the revenue laws of their own country, they owe no duty to similar laws of another state; so that an insurance upon a smuggling voyage, prohibited only by the laws of the country to which the ship may be trading, is valid, provided the object of the voyage is known to the underwriter (a). A similar doctrine has also prevailed in America (b). Contraband of war. It has been already mentioned, in treating of the national character of the assured, that insurances effected in a belligerent country upon the property of an enemy are void (c). Insurances by neutrals, in a neutral country, upon goods which are the property of subjects of a belligerent state, or upon contraband of war (that is to say, stores or provisions which are destined for one of the belligerent powers) (d), have also been considered by some authorities to be void, as contrary to the law of nations (e). It has, however, been decided, both in this country ever, that when a licence to carry pro- (y) Wilson v. Marryat, 8 T. R. 31; () Pothier, Kent, Story, and Mar- Arnould has, in his valuable Treatise on Insurance Law, adopted this view. See 1 Arnould on Ins. 744 (2nd edit.). (a) Planché v. Fletcher, 1 Doug. 251; Lever v. Fletcher, 1 Park on Ins. 360. In the former of these cases such an insurance was held valid, although fictitious papers were used to carry out the purpose of the scheme. (b) 3 Kent Com. 266. (d) See The Endraught, 1 Rob. 21, and the judgment of Sir W. Scott in The Sarah Christina, ib. 241; see also The Twee Juffrowen, 4 Rob. 242; The Charlotte, 5 Rob. 275; The Richmond, ib. 325; and ante, p. 376, note (y). (e) Phillips on Ins. c. 3, s. 2, and the authorities there cited. As to where a policy contains a warranty against contraband of war, see Seymour v. The London and Provincial Marine Insurance Company, 41 L. J., C. P. 193; 42 L. J., C. P. 111. |