cent cause insured, which sum exceeds the value of the property insured, all the underwriters on the several policies will be equally bound to return the premiums for the excess sum in proportion to their respective subscriptions (h). But where, of various policies effected on the same property at different times, the earlier policies have attached before the later have been underwritten, the premium is returnable on the later only; provided only the underwriters on the earlier policies, up to the execution of the later, sustained a risk equal to the full amount of their subscriptions (¿).

(1) 2 Marshall, Ins. 649.

(i) Fisk v. Masterman, 8 M. & W.

165; see "Case" at end of preceding §, p. 333.

CHAPTER XI.

REMEDIES ON THE POLICY-RE-INSURANCE AND DOUBLE

INSURANCE.

§ 181.

THE remedy on a valid policy of marine insurance is by an Action on a action, which may be brought either in the name of the policy. insured, or of the broker (then called the nominal insured)

who effected the policy (a).

An assignee of the policy may sue on it in his own name, provided only he be entitled to the property insured thereby (6); although the assignment was made after the loss of the subject-matter of the insurance (c).

When by the terms of a policy it is stipulated that no action shall be brought on it except within a certain specified time after the loss is incurred, the time will not necessarily be the time when the peril is encountered and the ship wrecked, but it may be the time when it is decided to be impossible to complete the adventure (d).

The pledgee of a bill of lading may sue in his own name on a policy effected by the consignee, in cases where it has been agreed that the consignee should insure the goods for the benefit of the pledgee, and deposit the policy with the pledgee (e).

(a) Provincial Ins. Co. of Canada v. Leduc, L. R., 6 P. C. 224; 43 L. J., P. C. 49; 31 L. T. 142; 22 W. R. 929; Browning v. Provincial Ins. Co. of Canada, L. R., 5 P. C. 263; 28 L. T. 853; 21 W. R. 587.

(b) 31 & 32 Vict. c. 86, s. 1; 36 & 37 Vict. c. 66, s. 25; North of England P. O. Co. v. Archangel Mar. Ins. Co., L. R., 10 Q. B. 249; see "Cases" (2) at end of this §;

Lloyd v. Fleming, L. R., 7 Q. B.

299.

(c) Lloyd v. Fleming, L. R., 7 Q. B. 299.

(d) Browning v. Provincial Ins. Co. of Canada, L. R., 5 P. C. 263; 28 L. T. 853; 21 W. R. 587; see "Cases" (4) at end of this §.

(e) Sutherland v. Pratt, 12 M. & W. 16.

Stipulation

If the assignment be made before the loss, the original insured cannot sue on the policy, except as a trustee for the assignee; and not even as such, unless the policy.is delivered up to him on the assignment, or there is an express stipulation that it shall be kept alive for his benefit (e). If the assignment be subsequent to the loss, the original insured can always sue thereon as a trustee for the assignee (ƒ).

When the interest of the insured has ceased before the loss, a subsequent assignment of the policy by him will be ineffectual (g).

If the policy expressly stipulate for a reference to arbifor a reference tration to ascertain the amount due, if it be disputed, then -binding. such reference and not an action will be the remedy (h). For though it is a principle of law that parties cannot by contract oust the courts of their jurisdiction, yet an agreement that no right of action shall accrue under a contract till any dispute which may arise between the parties thereto has been decided by a third person, will be valid.

Several actionswhen stayed.

If the insured brings several actions on the policy against several underwriters, the court will stay proceedings in all the actions save one, provided the underwriters agree to be bound by whatever verdict shall be given in that action. The insured, however, will not be bound by that verdict, and the court will decline to restrain him from trying a second action until the costs of the first are paid (i).

In an action by an assignee of a marine policy, the underwriters can set off a debt owed them by the insured

(e) Powles v. Innes, 11 M. & W. 10; North of England Oil Cake Co. v. Archangel Ins. Co., L. R., 10 Q. B. 249; see "Cases" (2) at end of this §.

(f) Sparkes v. Marshall, 2 Bing. N. C. 761.

(g) North of England P. O. Co. v. Archangel Mar. Ins. Co., L. R., 10 Q. B. 249.

(h) Scott v. Avery, 5 H. of L. Cas. 811; see "Cases" (1) at end of this §; Tredwen v. Holman, 1 H. & C. 72; Elliott v. The R. E. A. Co., L. R., 2 Ex. 237; Edwards v. Aberayron Mutual Ship. Ins. Co., 1 Q. B. D. 563; 34 L. T. 457 (C. A.)

(i) Doyle v. Douglas, 4 B. & Ad.

544.

in respect of any premiums due on policies effected with them by the assured before the assignment; but not for premiums due on policies effected after the assignment (k).

An action for the return of the premium can be brought either in the name of the insured, or of the broker who effected the policy ().

In the case of mutual insurance clubs, which are not Insurance clubs. incorporated, the member who has incurred the loss must sue in his own name the defaulting member. The manager or secretary cannot bring an action to recover either losses, premiums or contributions, in spite of any rule of the club or power of attorney authorizing him to sign policies and sue for premiums, contributions, &c. from the members (m). The fact of the rules of the club having been agreed to by the member, and professing to give the manager or secretary power to bring such an action, will not affect the question.

underwriters

The underwriters have no independent right to main- Action by tain in their own name, and without reference to the person for damage. insured, an action against wrongdoers for any damage caused by them to the vessel or goods insured (n). Their right must be asserted in the name of the assured. Therefore, if the person insured caused the damage, the underwriters will have no right of action (0), although they have paid for a total loss. It follows that where two ships, both belonging to the same owners, come into collision, and one is lost, the underwriters, even though they pay the insurance effected on the lost ship, cannot claim to rank pari passu with the owners of the cargo lost with her, in the distribution of any fund lodged in court by the owners, in their capacity of proprietors of the ship which caused the damage (n).

The lien of a policy broker has already been treated of in Book II. Chap. I. § 128 (2).

CASES.

1. A ship with some flour as her cargo was seen in the Gulf of St. Lawrence on the 22nd of November, 1867. Nothing further was heard of her until May, 1868, when she was found ashore at Anticosti, all hands having been lost. On the 29th of November, 1867, a violent storm had commenced in the Gulf, and there was strong probability that the ship had capsized and had been driven ashore during that gale. Part of the flour was subsequently saved and sold by an agent of the insurance company. It was not till March, 1869, that the action on the policy was brought in respect of the loss incurred. The policy contained a proviso that no action should be brought on it unless within a year after the loss was sustained. Held, that the action was not barred by lapse of time, inasmuch as the loss was not in its inception total, but only became so, when it was found impossible to convey the flour to its destination, and that it was necessary to sell it (r).

2. A policy on a ship was effected with a mutual insurance company, on the express conditions that the sum to be paid to any insurer for loss should, in the first instance, be ascertained by the committee; that any difference arising between the insured and the committee should be referred to arbitration; and that the insured should maintain no action on his policy unless and until the matter had been decided by the arbitrators, and then only for such sum as the arbitrators should award, the decision of the arbitrators being a condition precedent to the institution of an action. Held, that these conditions were lawful, and that before award no action was maintainable, even where the difference related to other matters than those of mere account (s).

3. The plaintiffs purchased linseed, to be delivered in the United Kingdom at a destined port, and to be paid for in fourteen days from its being ready for delivery. The vendors, before the sale to the plaintiffs, by a policy effected with the defendants, insured the linseed, including all risk of craft and boats to and from the ship, each lighter being considered as if separately insured. While the cargo was being unloaded by means of public lighters, employed by the plaintiffs, one of the lighters was sunk, and the linseed on it partly lost and partly damaged before the cargo had been completely delivered, and before the plaintiffs had paid the 28 L. T. 853; 21 W. R. 587. (s) Scott v. Avery, 5 H. of L. Cas. 811.

(9) See p. 211, ante.

(r) Browning v. Provincial Ins. Co. of Canada, L. R., 5 P. C. 263;