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THE
MARINE INSURANCE
1906.
ACT,
THE
MARINE INSURANCE
ACT,
1906.
BY
SIE M. D. CHALMERS,
K.C.B., C.S.L,
AND
DOUGLAS OWEN,
OF THE INNER TEMPLE, BABBISTER-AT-LAW, LATE SECBETAEY OF THE
ALLIANCE MABINE AND GENERAL ASSURANCE CO., LTD.
LONDON:
WILLIAM CLOWES AND SONS,
7,
FLEET STREET.
1907.
LIMITED,
T
PRINTED BT
WILLIAM CLOWES AND SONS, U1IITBD,
LONDON ADD BECCLKS.
THIS edition of the Marine Insurance Act, 1906, is in substance a third edition of the Digest of Marine Insurance,
the second edition of which was published, in 1903, by
Mr. Douglas Owen and myself. Owing to Mr. Owen's
absence abroad, I have, unfortunately, been deprived of
his valuable assistance during the later stages of the
preparation of this edition.
The
measure during
it
founded, and the cases before the Act are still in point
as illustrations in so far as the Act does not alter the
existing law.
M. D.
February, 1907.
CHALMEES.
Marine Insurance
existing law.
If
to
be a mere reproduction of
in the law are made in
amendments
under consideration.
is
un-
Again, in one or two instances, the Lords Select Committee, which partially examined the Bill, introduced
Vlii
in the law.
mentioned in the
The law
is
notes.
of marine insurance
upon common
rests
almost entirely
law.
with by statute.
being over 2000 in number.
On some
points there
is
It
them
in detail.
first,
to state the
law
and, secondly, to
support those propositions, where possible, by references
to leading cases, or cases containing good expositions of
principle
dated, and
if
Each
case
is
seem
After the
a
list
list
is
added
overruled,
is
made
to foreign
codes by
way
but no attempt
has
IX
been made
to
foreign code.
was
introduced by
Lord Herschell in 1894. Its history up to the present
time sufficiently appears from the following extract from
the
Memorandum
"
The
duced
Bill
is
in 1894.
Bill
attached to
it,
viz.
first
Lord Herschell.
It consisted of
to Lloyd's),
Mr. Chalmers.*
* After Lord Herschell's
death, Lord Chancellor Halsbury again took
Bill, and introduced it in the House of Lords in 1899, but did not
up the
mind
said in 1776,
object
is
'
In
all
certainty
it will;
Court to lay down some rule, and it is of more consequence that the rule should be certain, than whether it
is
established one
or the other.'
way
Macredie (1898), A. C. at
What
mercantile
(Lockyer v.
Offley,
1 T. R. at p. 259.
men
p. 597,
require
is
where the parties have either formed no intention or have failed to express it clearly.
Where the rule
for cases
of law
is certain,
the parties
know when
to stipulate
Bill is uncertain.
and
Mer-
freedom of contract
than
its
gate
nicety.
It is
down
is
of
more importance
is
being litigated
The
and appealed, pending business is embarrassed.
on
the
other
feels
codification.
hand,
cramped by
lawyer,
Discussions on the wording of the Act in question have
to take the place of discussions of principles.
No
code
was always blocked in the House of Commons until, in 1906, it was taken
up by Lord Chancellor Loreburn in conjunction with Lord Halsbury. In
the Commons the Bill was sent to Grand Committee, and was in charge
of the Solicitor-General. A good many amendments were made in committee and on the report stage, and most of them were agreed to, with
occasional modification,
when
arise, or
always use
language which
come
may
XI
defective.
is
In so far as
it
works well
it
before them.
He
If the
Bill
passes,
this
Digest
may be
useful
as
may add
that I
M. D. C.
January, 1901.
CONTENTS.
PAGE
PREFACE
INTRODUCTION TO FIRST EDITION OF DIGEST
vii
xvii
xxvii
Marine Insurance.
SECT.
.......
...
1.
2.
3.
perils defined
Insurable Interest.
4.
5.
6.
When
7.
interest
3
4
....
8
10
must attach
13
.
.15
8.
Partial interest
16
9.
Re-insurance
16
18
12.
Bottomry
Master's and seaman's wages
Advance freight
13.
Charges of insurance
14.
Quantum
15.
Assignment of interest
10.
11.
18
19
20
20
22
of interest
Insurable Value.
16.
22
and
Representations.
25
18. Disclosure
19.
.26
....
29
XIV
CONTENTS.
SECT.
...
...
I'A'IK
30
32
The Policy.
22. Contract
must be embodied
23.
What
25.
in policy
Premium
to be arranged
Double Insurance.
32.
45
Double insurance
Warranties,
etc.
47
36.
49
.
.50
Warranty of neutrality
51
No
52
53
53
57
39.
40.
No
41.
Warranty
...
59
of legality
The Voyage.
42. Implied condition as to commencement of risk
43. Alteration of port of departure
44. Sailing for different destination
Change of voyage
...
60
61
61
46. Deviation
62
63
64
48. Delay in
65
45.
49.
voyage
66
XV
CONTENTS.
Assignment of Policy.
1'AGE
SECT.
When
51.
52.
When premium
50.
....
68
...
70
67
The Premium.
payable
53. Policy effected through broker
54. Effect of receipt
69
72
on policy
Loss and Abandonment.
and
72
78
total loss
.79
80
81
....
81
.87
.88
"
abandonment
abandonment
92
and
94
95
...
.97
Measure of Indemnity.
67.
loss
102
103
103
....
....
measure of indemnity
105
106
108
109
110
Ill
112
115
78. Suing
116
119
under insurance
123
.
123
CONTENTS.
XVI
Return of Premium.
PAGE
SECT.
82.
124
Enforcement of return
83. Return
124
by agreement
125
Mutual Insurance.
85. Modification of
Act
mutual insurance
in case of
'
128
Supplemental.
86. Ratification
130
by assured
.130
....
by agreement or usage
132
132
133
91. Savings
134
92. Repeals
137
93.
Commencement
137
137
SCHEDULE
I.
Form
138
of Lloyd's policy
Rules for construction of policy
142
SCHEDULE
II.
Enactments repealed
153
CUSTOMARY DEDUCTIONS
APPENDIX
54
56
57
.154
STATUTES.
I.
155
159
159
Edw.
7, c.
7 (Continuation Clauses)
159
3 Edw.
7, c.
46 (Revenue Act)
1GO
APPENDIX
Note A.
Note B.
Note C.
Note D.
Note E.
Note F.
Note G.
II.
NOTES.
161
Definitions of barratry
Definition of average
163
Definition of
abandonment
Definition of piracy
INDEX
.........
164
166
168
170
173
179
Adams
Mackenzie
Aitchison v. Lohre
v.
FACE
...
.
78
Atwood
Aubert
132
Sellar
v.
147
Gray
v.
2,
Ajam Ghulam
Union Mar.
v.
Co
Ins.
Allison
57
Bristol Mar. Ins.
v.
Co
11,19,37
Allkins
v.
Jupe
Alps, The
Alsace Lorraine,
Anderson
v.
The
Morice
9,
127
77
150
2, 8, 13, 14,
15, 38,
-
v.
Ocean Mar.
57
82, 83, 85
Annen
Anon
v.
Woodman
127
171
Appollinaris
Co.
Nord
v.
ers
Asfar
v.
Blundell
Atkinson
Ins.
v.
....
151
v.
Janson
v.
80
Hong
Kwok-a-Sing
170
Brothers
Baring
89
48, 49
39, 40
Marine
v.
Co
Ins.
112, 133
....
Brown
Barraclough
Hewitt ....
Bates
Bean
Stupart ....
v.
49
Faber
v.
122
28
v.
50
r.
Bedouin,
Behn
Bell
v.
...
Bronifield ....
...
Humphries
Burness
v.
v.
The
Bensaude
v.
Thames
Mersey Ins. Co
Benson*. Chapman
Bents en i: Taylor
v.
Man On
Bhugwandass
Sea Ins. Co
v.
50
9
Netherlands
33
.
Birkley
v.
Presgrave
53, 55, 56
.
....
Dryer
Blackburn v. Haslam
Xav. Co
Blackburn
16
...
Shepherd
v.
52
and
Ins. Co.
v.
Birrell
77
32, 50
77
.
Biccard
163
Attorney-General for
Kong
122
Great Western
Co
Barker
Berridge
76, 96
Ballantyne v. Mackinnon
Barber v. Fleming 10, 11, 15, 143
Barnard
Ins.
Co
95
Anderson v. Pacific Mar. Ins.
Co
30,32
Anderson
Thornton
31, 127
39,
Angel v. Merchants Ins. Co.
tr.
Bainbridge v. Neilson
Baines v. Holland
100
51
27, 29, 30
v.
Liverpool Steam
v.
Vigors
145
26, 28. 29, 30
XV111
PAGE
Blackett
Royal Exchange
v.
114,
132
Blackhurst
Cockell
v.
Boehm
v.
Bold
Rotherham
v.
Bell
5, 12, 15,
53
126
...
Bouillon
v.
35,
...
Bovill
v.
Lupton
Holder Bros.
Boyd v. Dubois
Bradford v. Symondson
Boulton
v.
67
25
...
Office
BrigeUa, The
57, 146
136
Ins.
72
98,100
Brooks
....
v.
MacDonnell
Broomfield
v.
64
...
v.
Burnand
Wickham
v.
...
Rodocanachi
56
40, 42,
....
....
130
17, 28,
...
r.
Holt
17
...
...
....
Fisher
...
The
City of Paris,
Cochrane
v.
New
Zealand
77
54
African
15
51
v.
14,
15
Mer-
1*
65
South African
of
42
Harper .
144
Royal Exchange
Cory v. Burr . 59, 72, 75, 147, 163
v. Patton
30, 33, 133
Cossman v. West
79, 80
Cousins v. Nantes
8
Cornfoot
v.
v.
...
Crocker
Cronan
....
....
....
Allan
....
Cohen ....
Butler ....
Hyde ....
v.
v.
Crooks
v.
Sturge
17
Stanier
118
Crowley r.
Cullen v.
Cunard v.
Cunard Co.
v.
Marten
101
11
149
.V.)
5, 11, 110,
Currie
Bombay
v.
Ins. Co.
20
88,
117, 132
D.
C.
Dalby
Cahill
v.
Cammell
v.
Davidson
70
Daniels
Sewell
81
Darrell
v.
v.
h'if
Royal
Claphani v. Langton
Clay v. Harrison
Byas v. Miller
Byrne v. Schiller
Ill
17
v.
Merchants
Surges
37, 160
Company
....
v.
Chavasse, Ex parte
China Traders Assn.
116, 120
Tayleur
Blogg
Charlesworth v. Faber
chants
18
v.
108, 112
Chandler
Company
Southern Ins.
2, 20, 21,
v.
Col. Ins. of
108
Brongh P. Whitmore
23, 131, 141
Brown Brothers v. Fleming
108
Brown
Preston
132
25, 26, 28
Co
129
Co
v.
Chippendale
....
Jenkins
v.
ship
British Marine Mutual Ins.
v.
Castellain
Exchange
Co.
Boehm
v.
2, 16,
Brandon v. Curling
Brankelow v. Canton
.
62
54, 66,
.
Carter
Cator
Ins. Co.
130
Bottomley
Steamship Co.
Castle Mail Packets Co.
81
British
v.
Carlton
Harris
Tibbitts
...
162
55,
56
119
XIX
PAGE
.
Davidson v. Burnand
74, 111
Davies v. National Ins. Co. of
.
.
New Zealand
4, 43
63
Davis v. Garrett
89
Dean v. Hornby
.
Elton
Brogden
v.
De Cuadra v. Swann
De Hahn v. Hartley
48,
De Hart c.Compauia Anonima
.
50
...
...
Stoddart
v.
66
9
North
Saunders . 84, 112
Home and Colonial
v.
v.
Ass. Co.
Dent v. Smith
Devaux v. Salvador
.
- v.
F.
74
v.
60
Dickinson
v.
Jardine
120, 132
Difiori v.
Adams
Dixon
Sadler
Dora
v.
....
Wentworth
117
The
116
Mines
v.
Dudgeon
v.
....
Consolidated
Janson
Pembroke
136
Mackenzie
Dufourcet v. Bishop
v.
Co.
K.
112, 113
20, 21, 121
.
Binning
116
78
t;.
Boulton
v.
G.
Gamba
v. Le Mesurier
Gambles v. Ocean Ins.
Gardner v. Salvador
Garrels
v.
Gedge
v.
Ebsworth
v.
163
Alliance Mar.
Ins. Co
16,20,21
Eden v. Parkinson
52
Edwards v. Aberayron Mutual
...
Ins. Society
Eglinton
Elgood
v.
v.
Norman
Harris
59
...
36
83
52
Kensington
Co.
Royal Exchange
Ass. Corpn
6,
General Ins. Co. of Trieste v.
34, 129
.
....
122
70
Glenlivet,
The
Glover
Black
v.
e
9,
43,
....
Goodwin v. Robarts
Gordon v. Rimington
Gorsedd Steamship
Forbes
Grainger v. Martin
Grant v. King
Co.
59
v
'
/S
50
55
142
146
39 ,/nrJ^?
-?> /
132
^
146
v.
...
c
,
....
v.
Ass. Corpn
Rowcroft
79, 107
Small
Gledstanes v. Royal Exchange
E.
v.
143
Co
Cory
Gibson
Earle
133, 151
v.
Francis
87
99, 107
Foley
141
Duff
Flemyng
v.
127, 128
79, 83,
70
Stansfeld
v.
Foster,
70, 71
73
v.
Driefontein
33
Smith
Fisk v. Masterman
Fleming v. Smith
Fletcher v. Alexander
v.
64
Co
Fisher
Flint
Co
104
Fisher
Ins.
Archangel
v.
52,
72,76, 111
10
....
Steele
De Wolf
70,
133
v.
Denoon
66
Bowring
55
99
Aurora
Delany
v.
....
....
De Mattos
PAGE
....
125
83
61
XX
Green
113
....
Brown
v.
80
Hamilton.
v. Stock
Inrnan
Hansen
Scaramanga
Harrower v. Hutchinson
art
r.
81
25
98
26
Co
Empire Mar.
Co
China Traders
v.
74
.......
Irving
v.
Richardson
r.
Manning
Ins.
75, 97
20, 39
39, 41,
42
Ins.
cate
v.
Ins.
...
Steamship
r.
Hobbs
27
104, 109
.
92
24
Syndi-
70
Smith
v.
24
23,
21
v.
...
Whitmore
v.
Pickersgill
v.
Co
Houstman
Hunter
50
144
r.
v.
Potts
v.
73
141
(Deccan) Co.
.
72,77,85
v.
Caviller
Jamieson, Be
....
4
77, 85
...
.
91
....
v.
v.
Neptune
1;.
Nicholson
Joyce v. Kennard .
Juarez r. Williams
107
148
119
143
164:
3, 110,
...
162
70
64
....
Hyderabad
Willoughby
Co
Jones
Merchants Mar.
Co
Hunter
24
Ins.
...
Jackson v Mumford
Jackson v. Union Mar. Ins.
Jardine
35,
172
Hoskins
Houlder
J.
Jacobs
...
Hannam
Hogarth v. Walker
Home Mar. Ins. Co.
164
Assn
Iredale
133
v.
r. Rodgers
Henderson v. Shankland
Hickie v. Rodocanachie
Hill v. Patten
Hore
- ........
Fender
v.
Kaltenbach
v.
4, 44,
66
Keighley
v.
r.
Mackenzie
79, 81,
87,88,89,91, 168
130
Durant
.
-"~
Ins.
51,131,141
v.
Haywood
7,
16
7G, 77
lonides
r.
Haughton
Co
Hine
19
...
Bussell
v.
Harding
Harris
Dunn
v.
112
....
....
Janson
Hamilton v. Pandorf
v.
...
Pacific Mar.
v.
Co.
Hnll
43
....
Bischoff
v.
lonides
18
Fire
Corpn
Inchmaree, The. See Thames
and Mersey Mar. Ins. Co. r.
Inglis
Haabet,The
Hagedorn v. Whitmore
r.
......
Ins.
XXI
PAGE
Keith
Lucena
r.
Crauford
v.
10
Co
Le Mesurier
Kcllner
v.
Kemp
Halliday.
Bird
Kent
v.
r.
Kidston
King
...
82
Co.
94,
122
....
Walker
v.
The
Knill
75,
....
Hooper
v.
Saunders
v.
Coleman
v.
108
56
57, 58,
...
Macdowell v. Frazer
Mackenzie v. Whitworth
73
30
7,
Main,1he
.
39,40,41,42,105
Manchester Liners v. British
and Foreign Mar. Ins. Co.
77
Manfield
v.
Maitland.
10, 11
....
Laing v. Union
Lane v. Nixon
Laurie
v.
Law
f.
Hollingworth
Lawrence r. Aberdein
Lawther v. Black
Le Cheminant v. Pearson
Lee i\ Southern Ins. Co.
Lewis
r.
Ltd.
73
56
Maritime
115, 141
117
77
Oldham
Kucker
r.
Lidgett
v.
67
74
38, 114
The
Letchford
...
Secretan
150
42, 106
Tucker .
Northern Mar.
Ins. Assn. v.
Lishman
Ins. Co
Livie
Lloyd
v.
v.
Janson
v.
....
Fleming
Lower Khine
Sedgwick
Assn.
104, 114
Assn.
Ins.
Young
....
Ins. Co.
v.
115
162
Marsden v. Keid
Marten v. Nippon.
17
*****
144
Steamship Owners
v.
Assn
17
37
Mead
33, 142
Ins. Co.
....
Tyser
Metcalfe
Parry.
...
Meyer v. Ralli
Middlewood v. Blakes .
Midland Ins. Co. v. Smith
Mildred
Miller
v.
144
v.
27
r.
v.
Maspons
Law
8^
63,
64
121
69, 70
Accident Ins.
Co
v.
128
Stearns 17, 61
65, 141
Titheriugton
Mercantile Steamship Co.
90, 92
Ins.
(Van.
133
163
Lockyer v. Offley
Lohre r. Aitchison 79, 82, 102, 116
London Assurance v. Williams
Co.
129
....
v.
China
v.
change
v. Davison
Mercantile Marine
Lion
Co.
Marine Mutual
Leitrim,
couver case)
West Hartlepool
Indemnity Assn.
Laveroni v. Drury
Ins.
Trans-Pacific
....
58
Ill
Corpn
Marine
Ins. Co.
37
78
146, 149
Koebel
Lysaght
2
Iiis.
Empire
125
v.
King
r.
6, 59,
8, 9, 10, 12,
148
v.
Woodfall
92
/- *
XX11
PAGE
Montgomery v. Indemnity
Mutual Mar. Ins. 95, 96, 98, 99
Montoya v. London Assurance 73
&
Moran, Galloway
Uzielli
Morgan
v.
Oswald
v.
Price
Morrison
v.
v.
23
136, 137
....
45
Munroe, The
Naylor
Nelson
Nesbitt
Haddon
....
Taylor
v.
112
148
61
v.
136
.
.
.110, 111
North Atlantic Steamship Co.
v. Barr
82
North British Ins. Co. v. Lon.
123
Co
v.
7
v.
Fry
113
Exchange
O'Reilly v. Royal
Ass. Co. .
67
Page v. Fry
Palmer v. Blackburn
Fenning
v.
Marshall
Paly art v. Leckie
Parker v. Budd
v.
129
16
.
23, 132
...
...
61
142
....
....
....
Parkin v. Tunno
Parkinson v. Collier
Paterson v. Harris
127
82
61
132
145
Pawson
v.
Watson
Pearson
v.
Commercial Union
Pellas v.
Pickup
v.
Pickwick,
v.
64, 65
Neptune
Phillpott
Pink
Ins. Co.
Swann
Thames Ins.
The
v.
78, 85
Co.
68
57
....
...
Fleming
Cope
Middle Dock Co.
118
73,
v.
v.
Pitman
Co
v.
146
2, 103, 104,
.
...
Assn
v.
75
59
Pomeranian, The
Powles v. Inues
Price v. A 1 Small
Price
30, 48
Co
Ass.
Pirie
129
v.
Co.
Steamship
Oppenheim
Pipon
97
derson
Oceanic
66
.
45, 123
Newby Keed
Nickells v. London and Pro-
v.
Hoade
Niobe, The
129, 130
An-
v.
v.
v.
1, 21, 34,
Ill
N.
v.
41
Assn
Navone
Leslie.
Faber
Universal Mar.
Co
25, 27, 33
Moss v. Smith
2, 81, 82, 85, 86
Muirhead v. Forth Mutual
Ins.
Ins.
2, 5, 11, 13,
Co.
105
118, 133
22,
69
Damage
94, 113, 150
Maritime
Ins. Co.
5, 18,
114
Proudfoot
v.
Montefioro
26, 28
XX111
PAGE
Provincial Ins. Co.
Leduc.
v.
S.
48,
50, 88, 89
Puller
Glover
v.
66
Sadler
....
Dixon
v.
56
Ship Blairmore v.
Macredie 78, 82, 85, 90, 91, 103
St. Paul Fire & Mar. Ins. Co.
o. Morice
148, 149
20
Salacia, The
Sailing
Q.
Quebec Mar.
mercial
....
Com-
Ins. Co. v.
Bank
Canada
of
3, 48>
56
Samuel
...
Schloss Brothers
Scott, v.
Marine
Turner
v.
Rankin
Janson
v.
Potter
112, 114
Co
v.
4,
84, 92
Ins.
Blogg
v.
Preston
...
Redmond v. Smith
Red Sea, The
/
:
'
/"
Reg. v. McCleverty
Reischer v. Berwick
6,
42
51
Hadden
92, 93,
121
Seaton
60
Sellar
93
Sharpe v. Gladstone
Shee v. Clarkson
Shelbourne v. Law
170
...
...
72
13
""I Rhind v. Wilkinson
Rivaz v. Gerussi .
26, 27, 30, 31
Roberts v. Security Co. Ltd.
36,
^-/
i^ '?<(
1-
^x*-"
72,162
Robinson Gold Mining Co. v.
.
148
Alliance Mar. Ass. Co.
Roddick v. Indemnity Mar.
Ins. Co
10, 25, 50
Rodocanachi
iss v.
Roux
v.
v.
Elliott
....
Hunter
Salvador
Rowland
v.
v.
84,86
85,87
83
Ins. Co.
Vega
37, 136,
160
Ruabon Steamship
London Assurance
Russell v. Erwin
Co.
v.
Rnys
v.
Thornton
Royal Exchange
v.
Heath
McVicar
25, 162
ment
Ins. Co.
93,
.
Henderson
Shoolbred
v.
Nutt.
Sibbald
Hill
v.
&
....
v.
Thompson
v.
31
Sedg-
......
Simpson
81
27
...
Co.
124
.3,73,111
v.
Israel
9(5
Invest-
Shepherd
Simon
wick
61
..
61, 62
Small
v.
v.
Tyser
U. K.
Mar.
.....
Ins.
21, 76, 164
Assn
Smith v. Pyman
South British F.
Co.
v.
104, 114
v.
66
Maritime
Royal Exchange
3, 4, 82,
..
..
22
....
& M.
Da Costa ....
v.
South
150
ways
29
Spalding
90
Sparkes
v.
19
Ins.
17
Tram-
Staffordshire
36
v.
Crocker
Marshall
f^
vj
10, 12,
Rayner
152
Ins. Co. v.
......
Ins. Co. v.
66
Ins. Co.
Union Mar.
v.
--Sea
Stevens
Seagrave
Ralli
v.
Mannheim
Scottish
.
v. Royal Exchange
Scaramanga Stamp
.134
.
14.
Z-fr
XXIV
Spence
r.
Union Mar.
108
Stalnbank
.
10, 18
Fenning.
Steamship Balmoral v. Marten
41,95,110
Steamship Carisbrook Co. v.
London & Provincial Mar.
Ins. Co
100, 173
Stearns
r.
Main Beef
Village
Co.
52
1)0
Tudor
Tunno
62
Edwards
v.
Turnbull
writers'
120
...
54
Janson
Hull
v.
Aesn
r.
Under77
Turquand, Ex parte
Tyser r. Shipowners' Syndicate
132
36
43, 132
Stewart
Australasian Ins.
v.
Stephens
Ins. Co.
121
Lacey
v.
Mar.
r.
Co
Steel
Greenock
v.
Ins. Co.
92,
U.
122
Merchants
v.
...
Ins. Co.
Stewart
Steele
r.
Stcckdale
Dunlop
Strang, Steel and Co.
v.
104, 105
...
12
Scott
101
r.
r.
Stringer
Mar.
37, 114, 115
Co
v.
...
Pratt
Svensden
v.
Wallace
Sweeting
v.
Pearce
Ins. Co.
13
97, 98
70, 132
Ill
Empress Ass.
Martin
Cor.
Co.
r.
46
v.
23, 105
Mer.
70
Usher
v.
Noble
62
.
Tasker v. Cunningham .
Tate r. Hyslop
26, 27
Tatham v. Burr .
5,111,141
v. Hodgson
73
Dunbar
73
Taylor
v. Liverpool G. W.
Vagliano
Steam Co
Thames and Mersey Mar.
Vaudyck
v.
...
Co.
...
...
Bor-
Uzielli
T.
v.
Ins. Co. v.
Universal Ins.
91
Sutherland
Union Mar.
wick
Union Mar.
V.
Yy
-r
\i
v
....
Co.
r.
Hamilton
147
Ins.
5, 7, 73, 75,
v.
Bank
of
England
137
Hewitt
...
Vortigern,
The
Waugh
Morris
127
54,
56
145, 149
r.
Pitts
Thompson
r.
....
Hopper
v.
Tobin
Todd
r.
v.
146, 150
...
Reynolds
Harford .
.
Ritchie
Ins.
73
40
42, 106
164
v.
Wavertree Co.
Way
v.
v.
....
Love
Modigliani
...
(JO
135
61
v.
PAGE
...
Hopwood
150
v.
Poole
17
Western
West
Ins. Co.,
of
Ex parte
England Fire
17
Ins.
121
Co. v. Isaacs
v.
McPhail
Wilson
....
I'AGE
Eankin
v. Salamandra Ass.
-Co
XXV
v.
59
........
Wingate v. Foster
Woodside v. Globe
Woolridge
v.
26
...
Ins. Co.
64
3,
41
62
Boydell
76,
164
Westwood
v.
Bell
Wetherell
r.
Jones
...
...
Whincup
v.
Hughes
Williams
v.
Canton
70
Ins. Office
75,
80
-v.
North China
Co
Wilson
Ins.
42, 130
r.
v.
v.
v.
Jones
Xantho, The
Xenos
--
v.
Fox
Wickham
.
73,
146
36, 69
Martin
Nelson
Owners
per Xantlto
X.
128
....
....
16,38
10
39
of Cargo,
146
Yates
v.
White
21, 168
INDEMNITY MAR.
v.
Com.
Gas. at p. 23.
Anderson
v.
C.
1,
NEW ZEALAND
INS. Co. OP
v.
distinguished, COLONIAL
INS. Co. (1886),
ADELAIDE MAR.
Assecurazioni
Atwood
THE BEDOUIN
A.
v. Sellar (1880),
5 Q. B. D. 286, C. A.
1 Q. B.
discussed,
571
SVENSDEN
WALLACE
v.
Barker
Blackburn
BTTRN
v.
v.
considered, BIACK-
HASLAM
STEWART
v.
MERCHANTS MAR.
&
J. 244; distinguished,
INS. Co. (1885), 16 Q. B. D.
619, C. A.
Booth
v.
Gair (1864), 33 L.
EMPIRE
J. C. P.
99
L. R. 1 C. P. at
explained,
p. 549.
KIDSTON
v.
xxvili
MUTUAL MAR.
MONTGOMERY
overruled
v.
INDEMNITY
K. B. 734, C. A.
Burnand v. Eodocanachi (1882), 7 App. Cas. 382 distinguished,
STEARNES v. VILLAGE REEF MINING Co. (1904), 10 Com. Cas.
INS. Co. (1902), 1
89, C.
Cator
A.
tinguished,
C. P. 592
Great
v.
BROWN BROTHERS
v.
FLEMING
Com.
(1902), 7
dis-
Cas.
245.
v. Gray (1809), 10 East, 547 ; disapproved, AUBEBT v. GRAY
S. 163.
(1861), 3 B.
Cory v. Pattern (1872), L. R. 7 Q. B. 304 ; followed, LISHMAN p.
NORTHERN MAR. INS. Co. (1875), L. R. 10 C. P. 179, Ex. Ch.
Conway
&
S.
461
(1884),
501.
p.
Davy
&
HAMILTON
v.
(1856), 6 E.
De Mattos
v.
explained, RALLI v.
JANSON
B. at p. 431.
MAN ON
Devaux
&
INS. Co. v.
HAMILTON
H. L.
discussed, THE
(1894), P. at pp. 114, 118; THE KXIGHT OF
ST. MICHAEL (1898), P. at p. 34; MONTGOMERY v. INDEMNITY
INS. Co. (1902), 1 K. B. at p. 741, C. A.
Dickinson
v.
MARY THOMAS
Dixon
v.
WUITWORTH
(1880), p. 43.
point,
FARNWORTH
v.
HYDE
see at p. 226.
Farnworth
XXIX
717.
PEMBROKE
Gladstone
v.
L. K. 1 C. P. at p. 548.
v. Oliverson (1814), 2
&
S. 485; followed,
M.
(1874), L. K. 9 Q. B. 577, Ex. Ch.
Hamilton v. Mendes (1761), 2 Burr. 1198; discussed, BUYS
EXCHANGE (1897), 2 Q. B. at p. 138.
Hafjedorn
CORY
v.
PATTON
v.
ROYAL
&
Hicks
MAR.
Hurst
v.
(1873), L. R.
6H.
doubted, RANKIN
v.
POTTER
L. at p. 117.
Cas. at p.
95, C. A.
dis-
Joyce
BURR
RANKIN v. POTTER
THAMES AND
PANDORF
HAMILTON
v.
XXX
Law
AITCHISON
Lewis
v.
SEOBKTAN
(1871), L. B. 6 C. P. at p. 625.
Lohre v. Aitchison (1878), 3 Q. B. D. 558, C. A.
v.
LOHRE
reversed, AITCHISON
Ves. Sen. 98
explained, SIMPSON v.
Gas. at p. 293.
Moss
v.
App. Gas. at
p. 590.
Powell
v.
Hyde
Proudfoot
v. Montefiore (1866), L.
E. 2 Q. B. 511, 521
approved,
RanTcin
v.
MACKENZIE
v.
v.
XXXI
ETC.
Rosetto v.
v.
HYDE
Roux
v.
TBINDER v. THAMES
(1865), 18 C. B. (N. S.) at p. 856
AND MERSEY MAR. INS. Co. (1898), 2 Q. B. at p. 119, C. A.
Sailing Ship Garston v. Eickie (1885), 15 Q. B. D. 580; discussed,
HUNTER v. NORTHERN , MAR. INS. Co. (1888), 13 App. Gas.
HYDE
717.
Scottish
Mar.
Smith
v.
POTTEB
Reynolds (1856),
MAN ON
Macq. H. L. 334
H. L. at p. 100.
cussed, RANKEST v.
H.
dis-
(1873), L. R. 6
&
N. 221
BERRIDGE
followed,
v.
18 Q. B. D. 346, C. A.
Sparkes v. Marshall (1836), 2 Bing. N. C. 761; explained, ANDERSON
v. MORICE (1876), 1 App. Cas. at p. 735.
INS. Co. (1887),
v.
FIRE
discussed,
CORPN. (1856), 4 C. P. D.
INS.
166.
Stribley v. Imperial
BLACKBURN
Thompson
v.
v.
Hopper (1856), 6 E.
&
B. 172
Cas. 284.
Thompson
v.
WEST
(1887), 13
3 Q. B. D. 594,
C. A.
Weir
v.
Aberdeen (1819), 2 B.
INS. Co. v.
&
Aid. 320
discussed,
QUEBEC MAB.
(1870), L. R. 3 P. C.
234.
Panama
Tel. Co. v.
Home and
Col.
Mar.
Ins.
Co.
Williams
XXxii
Westwood
v. Bell (1815),
4 Camp. 349
(1876), 34 L. T. at p. 916.
Wilson v. Rankin (1865), L. R.
1 Q. B.
explained,
ETC.
FISHER
v.
SMITH
y.
PEMBROKE
(1874), L. R. 9 Q. B. 581.
Woodley v. Mitchell (1883), 11 Q. B. D. 47, C. A.;
XANTHO (1887), 12 App. Gas. 503.
overruled,
THE
explained, SFMPSOX
v.
THE
MABINE INSURANCE
(6
An
Act
to
codify the
EDW.
Law
7,
ACT, 1906.
CH. 41.)
relating to
Marine Insurance.
Marine Insurance.
1.
is
a contract Marine
For various
definitions of
for history of
p. 170.
1 '
The
1
From Latin
police.
pollicitatio,
of loss
is implied, not
expressed. Continental policies contain an express
promise to pay within so many days after notice of loss.
2
As
S. Ins.
.,
JK-
2
SECT. 1.
~~~
1906.
called
loss of property.
risk
"
is
lost,
Marine insurance,
1
in
legal
theory,
is
essentially a
The
contract
_of
of the contract
indemnity.
legal
Hence arise its distincare deductions from this cardinal principle.
tive characteristics, such as the rules requiring interest, the necessity
right of subrogation
right to
As
As
to
85.
52-54, and as to mutual insurance,
56-66. For a useful discussion of the mercantile
premium, see
to loss, see
meaning of
*
Cf.
MARINE INSURANCE.
The
SECT.
1.
settled.
New
difficulties that
wine has continually to be put into the old bottle, with inconSee note to Sched. I., post, p. 140.
venient results.
(1.)
any land
risk
which
may
in this
but, except as
Act
by
this section
provided, nothing
any
rule of law applicable to any contract of insurance other
than a contract of marine insurance as by this Act
defined. 3
1
McArthur, Ed.
v.
has been
Elliott (1873), 42 L. J. C. P. at
Jachon
v.
Law
Asp.
sea
4
SECT.
NOTE.
2.
new forms
1906.
London, including risk of fire and flood, from sheep's back until
waterborne at Townsville;" 2 and bullion may be insured "at and
from Boodini to London, including all risks of every description, from
the mines by escort to railway station at Raichur, thence by rail to
against
Lahore
4
;
"
to
London
"
and a fox
terrier
may
be insured
5
by water from Cartagena to any place in the interior of Columbia.
iiThese mixed sea and land risks may be compared, by way of analogy,
I
I
'
&
(3Edw.
7, c.
46),^os<, p. 160.
Marine
time
l>ills
Compare
(commerce.
(1.)
defined.
(2.)
In particular there
(a.)
Any
is
Act referred
to as
"
Such property
to maritime perils.
is
insurable property
in this
"7
1
Rodocanaclii v. Elliott (1878), L. E. 8 C. P. 649; affirmed L. R. 9
C. P. 518, Ex. Ch. (goods detained in Paris during siege).
2
King v. Victoria Ins. Co. (1896), A. C. 250 P. C. ; see, too, Dmies v.
National Ins. Co. of New Zealand (1891), A. C. 485.
3
Hyderabad Deccan Co. v. Willougliby (1899), 2 Q. B. 530; see, too,
Jansonv. Driefontein Consolidated Mines, A. C. (1902) 484 (bullion insured
from Transvaal Mines to London).
4
*
6
Jacobs
Arnould, Ed.
6, p.
688
Wilson
v.
Ex. Ch.
7
Arnould, Ed.
6,
pp. 18-29;
and as
90, post.
MABINE INSURANCE.
(b.)
The earning
any advances,
loan,
is
(c.)
Any
by
by reason
of maritime perils. 2
"Maritime
perils"
means
the
perils
consequent
fire,
is
Ex hypothesi,
and
see
14, 75.
3
Cf. Thames and Mersey Ins. Co. v. Hamilton (1887), 12 App. Cas. at
498,
per Lord Herschell.
p.
4
good illustration of this principle is furnished by the rule that
there may be a total loss of goods when the adventure is wholly frustrated
See
60, pott.
in specie,
SECT 3
-
6
SECT.
3.
1906.
too,
If
an
prohibited
and
by
illegality
it.
insurer,
the policy is
non oritur actio?
of
to
statute, or contrary to
in
The
6
So, too, as a general rule, English law takes no
ing belligerent.
7
But a distinction must
of
foreign trade or revenue laws.
cognizance
41,.jws<).
If insurer
and
IcTl^c,
it
must be disclosed
is
entered
As the
commerce change, new dangers and matters
For example", shipments of live
require to be covered by insurance.
cattle, which are insured against mortality and all other risks, have
The terms
conditions of maritime
to be covered
by special provisions,
by the old form of policy.
1
p. 9, C. A.
Eoyal Exchange Ass. Corpn. (1900), 2 Q. B. at p. 220.
Wetherell v. Jones (1832), 3 B. & Ad. at pp. 225, 226.
4
Arnould, Ed. 6, p. 691.
s
Cf. Kellner v. Le Mesurier (1803), 4 East, at pp. 402, 403.
6
Arnould, Ed. 6, p. 713, Ex p. Chavasse (18G5), 34 L. J. (Bank.) 17.
7
213 Lownden, Ed. 2,
Wesildke, Private International Law, Ed. 3,
102; cf. F.ancis v. Sea Ats. Co. (1898), 8 Asp. Mar. Cas. 418.
9
Bayner
Cf.
v.
Gedge
v.
p.
MARINE INSURANCE.
The
subject-matter, says
'
'
very concisely as being so much on ship,' on goods,' on freight,'
*
on profit on goods,' on advances on coolies,' 'on emigrant money,'
and so on." l See further, 26, post.
'
'
The
perils,
etc.
fyivp.
always been
interpreted to refer to perils of a like kind with those already enumerated j. Perils of a dissimilar kind may be insured against (see,
e.g.,
all risks
4
by land or by water.
On
The
"
marine insurance."
Mackenzie
Arnould, Ed.
Ins. Co. v.
I.,
As
3
See, e.g., Inman v. Sischof (1882), 7 App. Cas. at p. 686 (abatement
clause in charter party) Thames and Mersey Ing. Co. v. Hamilton (1887),
12 App. Cas. 484, at p. 491 (donkey engine explosion), which gave rise to
;
<1906), 11
Com. Cas.
to
p. 498.
v.
Faber
179.
Ins.
Co. v.
SECT. 3.
1906.
Insurdble Interest.
4.
Wagering
or framing
contracts
r
or wagering
A contract
(2.)
gaming
? r Ii
o
y
LCI. o &
Viet. c. 109,
(1.)
,,
of
void.
is
of marine insurance
is
deemed
to
be
as
this
by
is
such an interest
l
:
or
(5.)
"
/or
policy
itself,"
term
2, c. 37,
Act of 1845 avoids all policies which are in fact wagering policiesThe Act of 1745 (now repealed) avoided policies which bear on the
face of them the indicia of wagering, whether in fact they are
wagering policies or not.
A policy without interest
example,
is
[the expectation
is
18,
(1).
!t
Viet. c.
10!)),
Cf.
*
Lucena
See,
e.g.,
v.
Crauford (1806), 2 B.
v. Morice (1876),
Andenon
&
1
post.
INSURABLE INTEREST.
parole or in writing,
void."
As
and
SECT. 4.
the effect of
c.
by way of gaming
37), repealed
be noted
by Sched.
TT. of this
may
(1.) The statute was confined in terms to British ships, and goods
and effects laden thereon. Therefore a jg.p.i.
on a foreign ship
policy
was not illegal if, as a fact, the insurer had aTlawful interest and could
prove it. As, however, such a policy bears the mark of wagering on
the face of
^\
it,
should be generalized.
(2.)
thereon.
of salvage."
(3.)
The scope
prohibited.
Any
cash advances,
(4.)
"
policies
(t
of the statute
to the exact
Thus a
|
terms
policy on
distinction
is
The nature
policies and
modern language,
p.p.i.
to say, in
of an insurance
may
(5.)
The
statute
De Mattos
further contained
two more or
obsolete
less
2 C. P. D. 375
v.
Lucena
Cf.
-i
10
"Seer. 4.
1906.
The
(6.)
The present
section
insurable
defined.
which he
may
benefit
may be prejudice^jb^jtsjoss,
or~by the detention
or
thereof, or
by damage
may
thereto,
incur liability in
4
respect thereof.
Itttutrtftioni.
1.
The
assured,
Keith
Roddick
Arnould, Ed.
v.
v.
6, p.
55;
Wilson
v.
Ex. Ch.
4
$ B. R.
11
respect of their liability for the safe carriage of the goods, and this
" on
1
interest is sufficiently described as
goods."
2. Policy effected by shareholder in Submarine Cable Co. on the
The assured has an insurable interest /
successful laying of the cable.
2
in the adventure, although he has no property in the cable.
interest
4.
cannot be earned.
insurable interest,
and the
The agents
they have made to the ship in so far as they could arrest the ship
under
6 of the Admiralty Act, 1840 (3 & 4 Viet. Tl>5) for the
purpose of founding an action in rem.
viz.
Has
1.
in the policy ?
The
ing,
3.
What
is
the
quantum of his
interest ?
has been continuously expandsome of the older cases, which would tendTo narrow
and
dicta in
Marine
App. Cas. at
p. 220.
Of course
is
policy.
4
Barber
Moran Galloway d
v.
B.'s solvency
not a marine
SECT.
5.
12
SECT.
5.
it,
The
1906.
essence of interest
is (a)
that
there should be a physical object exposed to sea perils, and (ft) that
the assured should stand in some relationship, cognizable by law, to
,
"
its
by
preserva-
tion, or is prejudiced
It
at sea
appears to have been held that a person who had bought goods
under a verbal contract, which was unenforceable by reason of
It is clear, since
by shareholder
of
its
in
is
Suppose A.
is
offered
had no property
in
Why
\/
[^
no
it is
posted ?
Subsect. (2)
fore,
its
is,
there-
language was
criterion proposed
may
with respect to
its
it
destruction."
its
Elsewhere, speaking of
..
liability to third
persons,
loss against
" 3
"
The
general rule," says Willes, J., "is clear, that to constitute interest
insurable against a peril, there must be an interest such that the peril
would, by
its
proximate
effect,
Seagrave
v.
Union Mar.
INSURABLE INTEREST.
"
Any
interest
may
13
J.,
" which
is
SECT.
5.
/\
1 '
may be
voyage
voyage.
6.
(1.)
in
interested
the When
is
insured,
recover although he
his
have
interest
until after the loss,
not
may
acquired
unless at the time of effecting the contract of insurance
the assured
may
loss,
not. 5
(2.)
Where
by any
act or
election after he
^""^
<c
Illustrations.
1.
Rangoon
Sunbeam from
buy a"cargoj.'
t^^
14
SECT.
6/is not
~7
till
a complete cargo
is
1906.
loaded,
and he has
1
therefore no insurable interest.
"
" wheat
2. Policy on
cargo now on board or to be shipped in the
has an insurable interest which has attached, and can recover for the-
wheat
lost. 2
NOTE.
The
3
course, be assigned after loss.
Itrhas been argued that the rule contained in the proviso to subsect. (1) only applies to the case of a partial loss, but that is not so.
Suppose a man buys a cargo while at sea. It turns out that before the
purchase was completed the cargo had perished. As a rule, the contract is void, and, therefore, the buyer has no insurable interest
but
;
there
is
spei, as
a thing itself. 4
In the old form of pleading, interest was averted as existing during
Butif interest was traversed it.
the risk and at the time of the loss.
r
5
Until interest
prove interest at the time of the loss.
^as acquired, the policy could not attach.
^
It is often a dim'cult question tc> determine the exact moment
was
sufficient to
Prima facie,
are insured
is
Anderson
v.
Ch
affirmed
App.Tas7713, H. L.
*
Colonial Ins. Co. v. Adelaide Mar. In*. Co. (1886), 12 App. Cas. 128,
P.O.
3
I.,
Sparkes
rule
4
5
sale,
v.
1, pott, p. 142.
thereto.
INSUEABLE INTEREST.
7.
(1.)
15
a contingent interesT
is
by reason
making
delivery or
otherwise. 1
her, but the Prize Court afterwards restored her to her owners,
The
may
tingent.
&
ME
Freight, respondentia, and bottomry are of this descripthen, after discussing various ancient definitions of in" These definitions
surance, they go on to say
clearly embrace a
e insurabje.
tion?'
And
contingent interest which is subject to the perils of the sea, and for
the loss of which a compensation may be made." Re-insurance is a
now
But how
far
it
is
son
own
(2),
only at his
option.
Sparkes v. Marshall (1836), 2 Bing. X. C. 761, as explained in AnderMorice (1875), L. B. 10 C. P. at p. 620 Colonial Ins. Go. of New
v.
*
4
Zealand
2
interest, defeasible
v.
48,
and
notes.
SECT- TDefeasible
c on
ge n t
interest -
16
SECT.
7.
190G.
on
but could he assign the policy to the seller, and then reject the goods ?
Probably not; but various complications may be suggested which
await decision.
still
Partial
8.
'
NOTE.
is
An
insurable. 1
_^
partial interest of
interest.
____
any nature
is
insurable.
^**"
may
f.o.b.
t
5 of the Merchant Shipping Act, 1894 (57 & 58 Viet. c. 60),
Sp^)S are divided into sixty-four shares, and any number of persons
not exceeding five may be registered as joint owners of a ship or any
share therein.
to insure
all to
particular insurance.
Re-insurance.
9.
The
(1.)
may
6
ojf.it.
1
Inglis v. Stock (1885), 10 App. Cas. pp. 263, 274 (390 tons of sugar
sent off to satisfy two contracts, for 200 tons each, without any appropriation to either contract).
INSUEABLE INTEREST.
17
The
insolvent.
Viet. c. 56,
c.
2,
prohibition
1 (since
37,
valid,
but
it
was prohibited in
was dead or
4,
repealed),
exceptions, if any.
and as to notice of
action
by
As to
whom
indemnity
is
As
claimed. 3
Of. Nelson
v.
liable as third
Co. (1884), 15 Q. B. D. C.
"
payment by
Chip-
exceeding twelve months' limit for time policy); Maritime Ins. Co. v.
Stearns (1901), 2 K. B. 912, 6 Com. Cas. 182 (variation of risk from
summer to winter) Marten v. StcamsJiip Owners Assn. (1902), 7 Com.
" =
_C_as. 195 C'jjay aamay bo paid
pay as re-assured may be compellable _
Western Ass. Do. (Toronto) v. Poole (1903), 1 K. B. 37G (reinto navl
surauce against total loss, salvage charges excluded). South British F.
& M. Ins. Co. v. Da Costa (1906), 1 K. B. 45G, 11 Com. Cas. 81 (re-insurance for 1000 in excess of 500).
3
Nelson v. Empress Ass. Corporation (1905), 2 K. B. 281, C. A.
;
S CT.
9.
18
SECT. 10.
Bottomry.
The lender
10.
of
1906.
money on bottomry
or respon-
1
dentia has an insurable interest in respect of the loan.
Illustrations.
The master
1.
of a
damaged
money
for neces-
A merchant
The assured
is
bond
total loss. 3
an actual
NOTE. By the law of the sea the master may, in case of necessity,
and under certain restrictions, raise money on the security of the ship,
4
The condition of a loan on bottomry or responfreight, and cargo.
dentia
that the
not repayable
not arrive.
by Sea, Ed.
Master's
and seaman's
wages.
money
Consequently
3,
is
it is
310-319.
The master
11.
NOTE.
The law as to
The master of a
to
But when
this
was
laid
down
StainbanJt
Modern
Lucena
v.
Crau/ord (1806), 2 B.
&
P. at
p. 294,
H. L.
19
the doctrine prevailed that "freight was the mother of wages," and if
freight was not earned the seaman was not entitled to his wages.
SECT. 11.
that in
far as
such freight
is
loss.
Illustration.
charterer's
NOTE.
and not
By
in case of loss
being at the
3
But by special contract it may
it, but the person advancing it has.
be repayable, 4 and then the positions are reversed.
Though advance freight may not be repayable in case of loss, the
in
shipowner
may
Arnould, Ed.
6, p.
62
McArthur, Ed.
2, p.
Co. (1876),
65
cf.
if
the loss
Smith
v.
Pyman
is
Janson (1855), 4 E.
&
B. 500.
Advance
ieig
20
SECT. 12.
amount advanced
the
for freight
1906.
An
insurable. 2
As
a given advance
566.
By
is
repayable
in case of loss. 3
13.
Charges of
may
effect.
Quantum
Where
the
subject-matter insured is
mortgaged, the mortgagor has an insurable interest in
the full value thereof, and the mortgagee has an insur14.
(1.)
sum due
or to
become due
own
The owner
benefit.
6, p.
104.
Arnould, Ed. 6, pp. 84, 118 Irving v. Richardson (1831), 2 B. & Ad.
North British Ins. Co. v. London, etc., Ins. Co. (1877), 5 Ch. D. at
;
193
Commons Committee.
1NSUBABLE INTEREST.
21
him
liable, to indemnify
may have
agreed, or be
in case of loss. 1
loss
was occasioned
affirms the
says
"
:
himself,
and
own
who
"
Lloyd's policy in terms expresses that it is effected by J.S. as well
own name as for, and in the name and names of, all and every
in his
other person to
cargo, though
may have
if it is
lost
his
remedy by damages.
Theoretically, at any rate, the rules as to double insurance, and the
2
3
As
to the complications
which might
p. 398, C. A.
arise in the case of double
5 Ch. D.
4
at p. 583.
ment that a
trustee
may
is
thrown on
insure in his
own name,
by the
state-
"
(Lucena v. Crauford (1806), 2
regard the use or trust of a chattel
B. & P. at p. 290 6 R. R. 676 in H. L.). See, too, lonide* v. Pacific Ins.
;
As
79, post.
SECT
22
SECT. 14. r
jght O f subrogation,
equities resulting
and
32, 79,
interest,
its full
81.
Where the
Assign-
1906.
contract
1
implied agreement with the assignee to that effect.
But the provisions of this section do not affect a
transmission of interest
As
NOTE.
assignor, see
by operation
of law.
an assignee insuring
for his
14.
"
be given
will
it
Where
equity as an assignment."
there
be considered in a court
is
such an agreement,
by an assignment of the
effect to either
policy, or
it
of
may
by the
death and bankruptcy, but the subrogation of the insurer to the rights
of the assured on payment of the claim may perhaps be regarded as
coming under
As
this category.
interest, see
16.
and as
to
assignment of
51, post.
Insurable
Measure of
50, post,
Value.
'
value?
Arnould, Ed.
M. & W. 10
6, p.
115
and stores
Lowndes, Ed.
2, p.
Powles
\.
Innes (1841),
11
23
adventure
or
voyage
by the
contemplated
The
and
owned by the
a ship engaged in
and
'coals
assured,
engine
if
stores,
2.)
amount
the
of
freight
at
the risk of
in-
whole
(4.)
4
:
McArthur, Ed.
2, p.
2, p.
2, p. 67,
and as
to fittings, see
Galloway
Hogarth
v.
&
Walker
(1900), 2 Q. B. 283, C. A.
3
Utlier
McArthur, Ed. 2, p. 68
charges of insurance, see at p. 6iJ.
;
McArthur, Ed.
2, p. 69.
v.
'
<
*^/
is
.^
surable value
the
24
1906.
Illustrations.
SECT. 16.
no part of the
outfit of
in use. 2
two
invoice cost and charges, plus a certain agreed percentage for antici-
profits.
As regards
"
engine stores are the property of the charterer and not of the shipowner.
cf.
8 East, 373.
1
3
Disclosure
17.
and
25
less
than
SECT. 16.
Representations.
is
a contract
insurance
based upon the utmost good faith, and, if the utmost ma fidei.
good faith be not observed by either party, the contract
be avoided by the other party. 2
may
NOTE.
The general
special sections
Insurance
is
principle
is
is
bind-
ing upon both parties alike, though necessarily the question usually
arises with reference to the conduct of the assured.
"Good
faith,"
says Lord
if
p.
Roddick
\.
386, C. A.
2
to 290
3
4
5
280
action
by underwriters
for
26
of this section,
18.
(1.) Subject to the provisions
the assured must disclose_to the insurer, before the
con ^ rac j g concluded, every material circumstance which
SECT. is.
Disclosure
by assumi.
^.
*JtJ
*-'~i
^tf
contract.
yj
1906.
Every circumstance
(2.)
is
material whichjvouldjn-
fluence the
judgment
premium, or determining whether he
V^^
JLc*.
_^J
(a.)
/U/
(b.)
Any
Any
is known or presumed
known to the insurer. The insurer is
presumed to know matters of common notoriety
circumstance which
to be
J...JF
$1 *
J C
-7
*"
^ >^jtt~^
ij
(c.)
ought to know :
Any circumstance as to which information
waived by the insurer
is
Arnould, Ed.
v.
Ji~t
6 ^
Co
"
'3
11]
.3
'
P' 1910,
4
Any
27
which it is superfluous to
reason
of any express or implied
by
circumstance
disclose
warranty
The term
munication made
(5.)
assured.
to, or information
Illustrations.
Insurance on ship.
of a similar
name had
The
/L-^-y
3.
Assured
^ &&
'-
effects
be declared. The
cally under- valued, so as to conceal the fact that the earlier policies
are more exhausted than they appear to be. The insurer may avoid
the latter policies on the ground of non-disclosure.
If the charter contains a
4. Insurance on chartered freight.
must be disclosed. 7
Insurance on goods, including risk of craft. The assured does
not disclose that he gets his lighterage done on cheaper terms in concancelling clause, this
5;
common
carrier.
Arnould, Ed. 6, p. 588 ; Shoolbred v. Nutt (1782), Marshall on Insurance, Ed. 4, p. 366 Haywood v. Eodgers (1804), 4 East, 590 1 Parsons
on Insurance, p. 485.
;
2
3
4
s
6
Morrison
is
SECT. is.
28
SECT. 18.
1906.
NOTE.
is
commonly
referred to as
House
this notion. 4
insurance be undertaken by an
If
An
seems
sible to
6, p.
still
disclose that a
*
29
SECT> 19>
19.
where an insurance
is
an
by
9
Disclosure
effecting
is
known
to
known by,
him l and
been communicated
to,
or
(Z>.)
knowledge too
late to
communicate
it
to the
agent.
Illustrations.
1. Time policy on ship.
The broker who effects the insurance
omits to disclose a letter in his possession from the captain saying that
the ship has been ashore, and that she is being repaired. This is not
knows nothing
of the
ship, so that
honestly.
3.
overdue
ship.
may
1
Blackburn
Haslam
-
v. Vigors (1887), 12
(1888), 21 Q. B. D. 144.
App. Cas. at
Blackburn
v.
Blackburn
Ex. Oh.
4
p. 541
Blackburn
Blackburn
v. Vifjors (1887),
v.
Haslam
(1888), 21 Q. B. D. 144.
H.
&
N. 140,
i^^
30
The knowledge
NOTE.
SECT. 19.
of an agent to insure,
who
1906.
does not effect
1
insurance, is immaterial, but if an agent to insure
known
to the agent must be
facts
all
material
a
sub-agent,
employs
communicated to the sub-agent. 2
the
particular
If
is
not time to communicate with his agent, the contract would stand.
"
The assured must use " due diligence to communicate with his
agent.
20.
Represen-
(1
.)
tations
pending
of contract"
the assured or
his
may
representation is material which would influence the judgment j)f_a pruo!ent insurer in fixing the
(2.)
5
premTum, or determining whether he will take the risk.
(3.) A representation may be either a representation
as to a
matter of
fact, or as to
a matter of expectation
6
or belief.
(4.)
A representation
as to a matter of fact
is
true, if
between what
(5.)
or belief is_true
if it
be made in goodjaith. 9
(7.)
Whether a
31
or not
is,
Illustrations.
1.
The assured
Insurance on ship.
falsely informs
the insurer
NOTE.
representation
He
is
bound
to tell
a material
it
is
falsely,
the policy."
it
it
may
truly.
not be
Arnould, Ed. 6, pp. 514, 530, specifies a further class of representation, viz. a communication of information which the assured has
2
3
4
5
6
"
Arnould. Ed.
Rivaz
v.
Anderson
SECT 20
-
32
must always
The
it is
1906.
was an
obiter
The
of,
extrinsic evidence
is
inadmissible to contradict
its
terms.
As
a warranty must be
is
substantially
The
is
Arnould, Ed.
presumed
6, p.
to
repre-
literally
made
544.
is
3
any matter relating to the adventure.
insurer on
bound to disclose facts within his knowledge and not the opinions
which he forms on those facts. For example, the assured may think
that war between two States is imminent but unless he has special
information, he may leave the insurer to form his own judgment on
the matter. If the assured chooses to give his opinion, he must, of
;
it
course, give
When
deemed
eluded
to
21.
con-
honestly.
is
deemed
to
be
and
although
lonides
Behn
it
be unstamped. 5
v.
TEE POLICY.
NOTE.
" In
33
sidered to be concluded.
writers to issue a
stamped
SECT. 21.
was proved
It
policy in
1
standing anything that might happen after the initialling of the slip."
In Cory v. Patton, 2 the proposal of the agent of the assured was
The Policy.
22. Subject to the provisions of any statute, a Contract
contract of marine insurance is inadmissible in evidence Bodied
unless it is embodied in a marine policy in accordance in P lic y'
The
policy
may
when the
contract
concluded or
is
Illustration.
be issued
the policy
occurred. 4
in
is
executed
it
The
ship
is
is
accepted as in-
The
policy
may
October, taking
No
NOTE.
and
effect
Kingdom upon
is initialled. 5
It
A.
&
E. 303.
Mead
FisJier v. Liverpool
34
When
SECT. 22.
1906.
be made to the
was concluded, or
the contract
What
policy
23.
must
of the assured, or of
The
(2.)
The name
(1.)
specify.
for the
on his behalf
l
:
against
(3.)
as the
(4.)
(5.)
NOTE. Subsect. (1). The Marine Insurance Act, 1788 (28 Geo.
was construed as merely prohibiting insurances in blank or
bearer, and is, therefore, sufficiently reproduced by this subsection.
c. 56),
Where
Blackburn,
own name
his
it is
common
practice, as
"
different constituents."
as agent."
concerned
3,
to
of, all
effects
The
see
common form
the
86.
2
"
assured."
THE POLICY.
35
&
SECT. 23.
&
it
specifies
" the
particular risk or adventure, the names of the subscribers or
underwriters, and the sum or sums insured."
in a
An
The
error then
24.
name
of the ship
(1.)
nocet.
is
the corporate
seal
may
in
the case of a
be sufficient, but
be construed as requiring
nothing
the subscription of a corporation to be under seal. 5
(2.) Where a policy is subscribed by or on behalf
in this section shall
1
Boston Fruit Co. v. British and Foreign Mar. Ins. Co. (1905), 1
K. B. 637, C. A., affirmed A. C. (1906), 336 H. L.
Home Mar. Ins. Co. v. Smith (1898), 2 Q. B. 351, C. A.
3
See, for example, French Commercial Code, Art. 332 Netherlands
Commercial Code, Art. 592. Art. 605 of the Italian Commercial Code
provides that, where possible, the name of the master, and the nationality
and tonnage of the ship must be inserted in the policy. It has also been
suggested that a policy should specify the place where it is made
(MeArthur, Ed. 2, p. 29, n.).
;
K.6 Q. B.
674, affirmed L. K. 7
Q. B. 517.
5
Signature
36
SECT. 24.
a distinct contract
2.
" The
an ordinary Lloyd's policy was subscribed
"
names
of the
Manager
amounts of their subscriptions.
Held, that
members was several, and not joint.
;
Issue of
policy.
Syndicate, C.
the
contract
the
of
25.
Voyage
policies.
S.
and time
1906.
(1.)
is
presumed on very
Where
and
the contract
or
3
slight evidence.
is
from
to insure
the
one
place to
"
called a
another or others, the policy
voyage policy,"
and where the contract is to insure the subject-matter
" time
for a definite period of time the policy is called a
contract for both voyage and time may be
policy."
subject-matter at
from,
is
[1 Edw. 7,
c.7.]
11 of the Finance
made
for
any time
A ship may be insured " from London to Hong Kong for six
"
months," or from London to
&
55
Arnould, Ed. 6, pp. 150, 250; Lloyd's Act, 1871 (34 & 35 Viet.
Eule 4 in schedule and see per Walton, J., in Anglo-Californian
Bank v. London & Prov. Mar. Ins. Co. (1904), 10 Com. Cas. at p. 8.
c. xxi.),
Tyser
v.
(accident policy).
4
Arnould, Ed. 6, pp. 230, 373 and Gambles \. Ocean Ins. Co. (1876),
Ex. D. 141, C. A.
*
See 54 & 55 Viet. c. 39,
93, 94, 96; and as to calculation of dates,
see South Staffordshire Tramways v. Sickness Ass. Assn.
(1891), 1 Q. B.
;
402.
THE POLICY.
37
Viet.
SECT. 25.
been mitigated
For stamp purposes
deemed to be voyage
8 of the Revenue Act, 1903 (3 Edw. 7,
by
policies, see
post, p. 160.
voyage policy which covers a ship for thirty days after arrival
be stamped as a voyage policy only, but if any longer period be
covered it must be stamped both as a voyage and time policy. See
94 of the Stamp Act, 1891, post, p. 156.
may
Time
policies
sometimes give
where the
cause of loss comes into operation before the policy expires, but the
actual loss occurs after it expires. 3 As to calculating time, when
ship's time differs
26.
,
(1.)
91.
desig- Designation
4
in
the
subject-matter
insured
need
not
of subjectmatter.
be
** *
T ^ *"-*
Stewart
Arnould, Ed. 6, c. 49 Me Arthur, Ed. 2, p. 61 ; Mackenzie ,v. Whitworth (1875), 1 Ex. D. 36, at p. 40, C. A.
Mackenzie v. Whittoorth (1875), 1 Ex. D. at p. 41.
6
Allison v. Bristol Mar. Ins. Co. (1876), 1 App. Cas. at pp. 216, 235
but cf. McSwinney \. Royal Exchange (1850), 14 Q. B. 634, where " profits
on rice " was under the circumstances held an insufficient description.
;
'-
Mackenzie
\.
38
SECT. 26.
1906.
But having regard to the length of time during which this decision has
been unquestioned law, it was thought better not to disturb it. If an
insurer does not know whether a proposed insurance is original or by
specified in
l
;
so, too,
"
will
not
"
"
a policy
passage money.
Prospective profits
goods out of which they are expected to arise, but in that case they
must be specifically described as profits. " The subject-matter of this
insurance is on rice," says Blackburn. J., " and though that is to be
construed liberally as covering any interest in the rice, it cannot be
construed as covering an interest in profits that might arise collaterally
rice." 3
"In some
then
it
should be stated
...
in all cases
when
the interest alters the risk, it may probably be said that such interest
is the subject-matter of the
insurance," and he then goes on to
instance a case of profits dependent on various contingencies. 4 But
it is
difficult to see
how
The
Mackenzie
or is not, covered
3
"
by
Anderson v.
Mackenzie v. Whitworth (1875), 1 Ex. D. at
(1867), L. E. 2 Ex. at p. 151 (submarine cable).
4
p.
41
cf.
Wilson
v.
Jones
THE POLICY.
39
SECT. 26.
27.
(1.)
policy
may
(2.)
Valued;
policy
valued. 2
(3?)
/agreed
Illustrations.
1.
company
3000
in
2000.
for
all.
1
Mackenzie v. IVhittcorth (1875), 1 Ex. D. at p. 43, citing Glover
Slack (1765), 3 Burr. 1394.
*
Mo Arthur, Ed. 2, p. 71 Irving
Arnould, Ed. 6, pp. 301-309
;
v.
v.
Manning
see
Rankin
*
v.
Potter (1873), L. K. 6
Arnould, Ed.
6, p.
301
p.
305
taken
H. L.
at p. 114.
Barker
v.
v.
Manning
(1847), 1
now common
but
it is
flSjrnOTsliTCTsr-6
.
H. of L. Cas.
Irving
v.
Pichardson (1831), 2 B.
&
Ad. 193.
at
be
'
40
SECT. 27.
1906.
any damages paid by the assured as the sum insured bore to the value
of the ship insured and freight.
The assured had to pay 2110
damages for running down another ship. His ship was sold under a
Held, that
an underwriter
policy
4.
8000.
damaged
for
to
1000. 2
pay
ship at sea
is
fact.
is
totally
lost.
5.
ship valued at
6000
is
insured for
6000.
Her
real value is
She
9000.
of this
sum
is
as salvage. 4
The
On
first
repaired at Calcutta,
is
and
damaged by storms.
after the thirty
partial loss,
is
The
is lost.
The
insurer
is
500. 6
1
Thompson v. Reynolds (1857), 26 L. J. Q. B. 93; cf. Xenos v. Fox
(1868), L. R. 3 C. P. at p. 636 to like effect.
3
Bruce v. Jones (1863), 32 L. J. Ex. 132 discussed McArthur, Ed. 2,
p. 73.
;
But
see
TEE POLICY.
41
The ship
paid in advance.
assured is entitled to receive
is lost.
The
5500, less
10.
A ship is insured
against
fire
by a valued time
While
policy.
the policy
is
The
17,500.
The
ship
is
much
10,500
injured by storms, and it is shown that it would cost
to repair, and that her market value when
9000.
repaired would be
The assured, notwithstanding the valuation, is entitled to abandon the
5
ship and claim for a total loss.
policy."
was merely
He
Woodside
v.
Steamship "Balmoral"
A. C. (1902), 511 H. L.
5
Irving
v.
Manning
affirmed
SECT. 27.
42
SECT. 27.
if
1906.
it
at the
sive for a
interest
was ground
28.
An
is
unvalued policy
is
cf.
*
*
Irving
Cf.
p. 335,
per Lord
Selborne.
v.
Harford (1865), 34 L.
J. C. P.
57 Ex. Cb.
lonides
TEE POLICY.
instirable value to
manner herein-before
29.
(1.)
43
SECT 28
-
specified.
the insurance in general terms, and leaves the name of ship lithe ship or ships and other particulars to be defined by shlps>
2
subsequent declaration.
or declarations
policy, or in
may
other
customary manner.
(3.) Unless the policy otherwise provides, the declarations must be made in the order of despatch or
in the case of goods, comprise
the
terms of the policy, and the
within
consignments
value of the goods or other property must be honestly
shipment.
They must,
all
stated, but
rectified
even after
or declaration was
loss or arrival,
made
iu
good
may
be
faith.*
Unless the
(4.)
of
declaration
or arrival, the
of loss
(1847), 1
Ibid.
Arnould, Ed.
68-71.
;
McAithur, Ed.
2, p. 77.
L. E. 8 C. P. 18
;
44
SECT. 29.
is
said that
"
1906.
a loss on board any ship he pleases that comes within the terms of that
l
That may have been the law formerly, but floating policies
policy."
" to follow and
are now commonly effected
succeed," that is to say,
on (McArthur, Ed.
Construeof
terms in
* ion
policy.
30.
(1.)
is
declared
2, p. 78).
A policy may
expressions in the common Lloyd's policy. This may assist the parties
to see the scope and effect of the ordinary printed contract, and to add
to or alter its terms to meet their special requirements.
"
In subsect. (2) the words " Subject to the provisions of this Act
"
"
were added in the Commons Committee, and the word
may was
altered into " shall."
arranged
Premium
*
premium is payable.
(2.) Where an insurance
is
effected
Arnould, Ed.
6, p.
loss,
340
post, p. 138,
for its
incidental risk).
DOUBLE INSURANCE.
45
NOTE. This section is hardly covered by express decision, but it SECT. 31.
accords with the mercantile understanding, and follows the analogy of
"
"reasonable price in the case of contracts of sale. 1
Policies are often effected on the terms that a given departure or
deviation from the conditions of the policy shall be " held covered at
a premium to be arranged."
Double Insurance.
32.
(1.)
Where two
or
more
Where the
assured
is
over-insured by double
insurance
(a.)
The
may
order as he
Where
claims
the
is
without regard
(c.)
to the
4
subject-matter insured ;
Where the policy under which the assured claims
p. 583, C.
A.
'
46
1906.
f
SECT. 32.
js
credit, as
deemed
to
insurers, according
bution
to
themselves. 2
among
and the loss on it 400, the merchant can recover the whole 400,
and a return of premium on 1000, just as if he had one policy for
5000 but he may at his option claim from one policy three-fifths
;
if
he
may
claim
see
As
27.
to
a ship
is
arrival,
and
is
to
also insured at
Arnould, Ed.
value, see
2
This
81, post.
There appears
6, p.
329
and from B.
is
to C.
If she
4
doubly covered.
Park on Insurance,
p. 423.
The
As
is lost
at B.
question
of
to insurable
16.
is consequential.
See 80 supplementing this provision.
Lowndes, Ed. 2, p. 35 (unvalued policy).
4
See the point raised in argument in Union Mar. Ins. Co. v. Martin
(1866), 35 L. J. C. P. 182, where the second policy superseded the first.
*
WAEEANTIES, ETC.
mortgagor and mortgagee, among others,
is
47
discussed
by
SECT. 32.
Mellish, L.J.,
destroyed by fire, and it was held that the loss must be wholly
borne by the wharfinger's insurers, as the wharfinger was liable
to the merchant.
The Lord Justice says : " The rule is perfectly
established in the
case
of a
the whole property, yet they would recover from their respective
insurers the value of their own interests, and of course these values
remedy over against the other, because the same property cannot in
value belong at the same time to two different persons. Each of them
may have an interest which entitles him to insure for the full value,
because in certain events
insolvent
that
if
offices
the person
full
the other.
over,
it
whom they
who
and then
full
insure,
it is
Warranties,
etc.
(1.)
at p. 583.
v.
See
34-41.
Ch. D.
^Nature of
48
SECT. 33.
that
to say, a warranty
is
1906.
A warranty may
A warranty, as
(2.)
(3.)
be expressed or implied. 2
above defined, is a condition
in the policy,
the insurer
discharged from liability as from the date
of the breach of warranty, but without prejudice to any
is
liability incurred
date. 3
Illustrations.
1.
ship
warranted to
is
A ship
insured from
is
Quebec by the
that port.
3.
The
insurer
is
sail
The
insurer
New York
warranted to
The
1st of
ship sails
is
liable. 4
and
from Quebec on or before
from New York too late to
sail
November, and
is liable.
not
is lost
before reaching
Arnould, Ed.
Arnould, Ed.
6, p.
G, p.
as to waiver.
49
WARRANTIES, ETC.
"
use of the term " warranty as signifying a condition
inveterate in marine insurance, but it is unfortunate,
The
NOTE.
is
SECT. 33.
precedent
because in other branches of the law of contract the term has a
to
term
is
First, it is
Secondly,
is
used to denote a
mere
or before a particular date, the insurer may avoid the contract if the
But take the case of the
warranty is not strictly complied with.
"
free from capture and seizure."
The assured does not
warranty
There is
undertake that the ship or cargo shall not be captured.
merely a stipulation that the policy shall not apply to such a loss.
The final words of subsect. (3) represent the American rule. 1
The
point
is
said
by Arnould not
to
But
this is
not
so.
is clear.
The
policy is
A void
the insurer
at a
be arranged (see
premium
to
34.
(1.)
31, ante).
Phillips on Insurance,
771.
Arnould, Ed. 6, p. 604 but see Lowndes, Ed. 2, p. 93, citing Baines
Holland (1855), 10 Exch. 802, which seems in point.
3
Barnard \. Faber (1893), 1 Q. B. 340, C. A. (fire policy).
4
Arnould, Ed. 6, p. 605 McArthur, Ed. 2, p. 37.
;
v.
is
50
SECT. 34.
(2.)
Where a warranty
is
1906.
insurer.
tration to
ies<
illus-
An
Express
33.
(1.)
inferred. 4
An
policy.
An
NOTE.
The
in recent years
Mar.
De Halm
v.
Ins. Co. v.
(implied warranty).
*
See Quebec Mar. Ins. Co. v. Commercial Bank of Canada (1870)^
L. E. 3 P. C. at p. 244 Provincial Ins. Co. v. Leduc (1874), L. E. 6 P. C.
at p. 243 and see Owen's Notes and Clauses, Ed. 3, p. 120.
;
Arnould, Ed.
6, p.
600,
and Bean
v.
Bank
of
v.
Stupart (1778),
Canada
Dougl. 11.
(1870), L. E. 3 P. C. 234
(insolvency of insurer).
WARRANTIES, ETC.
51
"
l
Warranted, no iron or ore in excess of registered tonnage."
" Warranted not to sail for North America after
2
15."
August
"
Warranted, no St. Lawrence between October 1 and April 1."
"
Warranted not to proceed east of Singapore." 4
"
5
Sailing on or after March 1st."
36.
Where
(1.)
SECT. 35.
commencement
assured can
control
of the risk,
and
the matter,
its
neutral character
"
"
expressly warranted neutral
there is also an implied condition that, so far as the
assured can control the matter, she shall be properly
Where
(2.)
documented
a ship
that
is
is
to establish
necessary papers
she shall not falsify or suppress her papers, or use
simulated papers. If any loss occurs through breach of
this condition the insurer
may
Illustrations.
Hart
(' iron
3
"
Simpson Steamship
Com. Gas. 198).
s
Sea
Co. v.
C. A. (what
is
Ibid., p. 680.
Trinder
Collins,
As
Ed.
681, and
at p. 128, per
6, p. 685.
6, p.
t rafty".
52
SECT. 36.
is
There
is
1906.
no breach of the
1
warranty of neutrality.
2. Policy on goods.
Ship and goods belong to the same owner,
and are both warranted Danish (i.e. neutral). The master commits
a breach of the laws of neutrality by forcibly resisting search, and the
The assured
ship and goods are captured and condemned as prize.
and
is
captured by a priva-
and
is
condemned on
is liable
NOTE.
unseaworthy
much in
rules
any
No
of'natioif-
allty>
There
37.
implied
ality of a
is
In Dent
v.
Smith, decided in 1869, Lush, J., points out that the fact
decision on any such implied warranty was very
was no
with convoy. 6
ship, or
sail
existed.
The
facts
were as
In Turkish territory
1
Eden v. Parkinson (1781), 2 Dougl. 732, Lord Mansfield.
raised that there can be no insurance against British capture.
*
Garreh v. Kensington (1799), 8 T. B. 230.
Point not
p. 386.
6
Dent
v.
WARE AN TIES,
ETC.
53
SECT. 37.
As
to the express
6,
38.
Where
" in
or
sufficient if it
day.
(1.) In a voyage policy there is^an implied^ Warranty
at the commencement of the voyage the worthiness
that
warranty
of shlp
ship shall be seaworthy for the purpose of the particular
39.
adventure insured.
Where
is
commencement
is
2, p.
94
BlacUiurst
v.
seaworthy in
is
CocMl
(1789), 3 T. B. 360
(ship).
2
Arnould, Ed. 6, p. 648 McArthur, Ed. 2, p. 13 Lowndes, Ed. 2,
98; Biccard v. Shepherd (1861), 14 Moore P. C. at p. 493.
3
Quebec Mar. Ins. Co. v. Commercial Bank of Canada (1870), L. K. 3
P. C. at p. 241 cf. Haughton v. Empire Mar. Ins. Co. (1866), L. K. 1 Ex.
;
p.
206 (overlapping
policies).
.,
54
SECT. 39.
reg p ec t o f
1906.
of that stage. 1
(4.)
ship
is
deemed
to be seaworthy
when she
is
fit
reasonably
2
perils of the seas of the adventure insured.
liable for
any
3
loss attributable to unseaworthiness.
Illustrations.
1.
sailed there
the river, but disabled her when she got out to sea. She put back to
Afterwards she proceeded on her
port, and the defect was repaired.
voyage, and was lost in bad weather. Held, that she was unseaworthy
commencement
at the
was not
liable.*
not
1
liable.
fit
for the
ocean
transit.
The
insurer
Bouillon
Co. v.
*
Dixon v. Sadler (1839), 5 M. & W. at p. 414; Bouillon v. Luj>tn
This includes manning, equipment, and
(1864), 33 L. J. C. P. at p. 43.
\.
:!
P. C. 234.
Turnlull
v.
WASHAN TIES,
ETQ.
55
which
ship,
is
Time
4.
There
lost.
substituted ship
is
is, it
seaworthy.
policy on ship.
As she
is
dently,
The
insurer
is liable. 2
Time
November, but
know
this
when he
The
is liable. 3
6. Time policy on
She is sent to
ship lying in her owner's yard.
sea in an unseaworthy condition, and lost. The owner did not know
she was unseaworthy. The insurer is liable.4
7.
is all
"
wine in casks on or under deck." The wine
policy on
stowed on deck. The effect of this is to endanger the safety of
Voyage
the ship in rough weather, unless the wine be jettisoned, but the wine
so stowed as to be easily jettisoned.
The ship meets with bad
is
The
is
at
the
time of
sailing,
jettisoned.
is
ship
not
liable. 5
8. Policy on copper from Port II. arid Port N. to S.
At H. 150
tons are loaded, and at N. 250 tons more are loaded. The additional
The
load is too heavy for the ship, she sinks, and the copper is lost.
first
for the
second load
of 250 tons.
9. Policy on round voyage from England to port or ports in South
America, with liberty to call at any ports, and back again to England.
The ship calls at Monte Video, but neglects to take in sufficient coal
to bring her to St. Vincent, her next port, so that some of her fittings
and cargo have to be burnt as fuel. For coaling purposes this voyage
is
she
De Cuadra
Dixon
v.
Daniel*
v.
Biccanl
v.
Dudgeon
v.
W.
895.
SECT. 39.
56
SECT. 39.
by burning the
fittings
1906.
policy.
to
The warranty
the case
or, as
may
time
subsequently disapproved.
is
The
is
in a
fit
state,
an absolute
state.
It
to
adventure in contemplation. As
seaworthiness for the port, seaworthiness in some cases for the river,
and seaworthiness in some cases (as in a case which has been put
deck cargo.
On
the other hand, if the insurer knows the nature of the risk
sufficient if every reasonable precaution be taken."
Subsection
1
(3)
was
Commons Committee.
redrafted in the
Maritime
It
K. B. 367
15
it is
(1899),
P. C. at p. 241.
p. 160, C.
6
And
v. Commercial Sank
of Canada (1870), L. E. 3
see per Collins, M.E., in The
Vortigern (1899), P. at
A.
1 (policy
on wine stowed on
deck).
"
WAREANTIES, ETC.
57
originally provided, in accordance with the older dicta, that the ship
SECT. 39.
must be seaworthy, i.e. seaworthy in all respects, at the commencement of each stage, but having regard to the implied coaling warranty
in the case of round voyages it was narrowed to its present form.
"
The
v. Thames Ins. Co. 6 the insurance was on freight.
Rangoon and met with heavy weather. Eleven days after
she had to put back, and was then found to be strained and
In Pickup
vessel left
sailing
unseaworthy. Held, that these facts did not establish the presumption of unseaworthiness when she sailed
it was a question for the jury.
;
Ajum Ghulam
v.
40.
there
is
(1.)
are seaworthy. 8
1
at p. 336,
Esher.
5
Anderson
point (1876),
6
Pickup
v.
v.
App. Cas. at
Thames Ins.
Ajum Ghulum
Arnould, Ed.
(cocca-nut oil)
6, p.
cf.
p. 752.
650
Boyd
v.
58
SECT. 40.
1906.
is
is
by the
policy.
NOTE.
shipowner,
the
policy the shipper, equally with
See note
responsible for the seaworthiness of the ship.
Under a voyage
is
to last section.
Though the
insured,
11
prqpre.
and insurer on
ship,
may
nevertheless,
unseaworthy
Cf.
by reason of being
for the
case).
2
3
4
be
and
see
17-22.
55, post.
59
WARRANTIES, ETC.
There
41.
insured
is
Time
policy ou ship.
in smuggling.
owner, engages
is not liable. 2
insurer
master,
&
by
Policy for
recover. 3
if
arrive at
time.
policy
4
policy cannot be enforced.
effected
war breaks out between France and England, and the ship is
The assured cannot recover on this
policy.
XOTE.
is invalid.
"
vention of
1
Arnould, Ed. G, p. 686
McArthur, Ed. 2, p. 19
Dudgeon v.
Pembroke (1874), L. R. 9 Q. B. at 586.
Pipon v. Cope (1808), 1 Camp. 434, as explained, Trinder v. Thames
If the master
<in>! Jlem-y Ins. Co. (1898), 2 Q. B. at p. 129, C. A.
smuggles without the owner's connivance it is barratry, Cory v. Burr
(1883), 8 App. Cas. at p. 399.
3
Wilwn v. Ranlcin (1865), L. E. 1 Q. B. 162, Ex. Ch. Aliter, if the
;
SECT. 41.
warranty
of
le s allt F-
60
SECT. 41.
1906.
An
illegal.
The Voyage.
42.
(1.) Where the subject-matter is insured by
"
a
a
e
v y g P lic 7 " at and from" or " from a particular
as tocommencement
place, it is not necessary that the ship should be at that
place when the contract is concluded, but there is an
implied
n
commenced the
(2.) The implied
not so
insurer
known
or
4
by showing that he waived the condition.
Illustration.
from
See
ibid, at p. 457,
and
see Arnould,
THE VOYAGE.
61
not liable on this policy, for the delay alters the risk from a
risk to a winter risk. 1
summer
SECT. 42.
Where
to be distinct from
43.
60, post.
Where the
By
it is said,
usage,
Alteration
inter-
posed, but the evidence of such a usage would have to be very clear.*
Suppose a ship is insured from London to New York. If she starts
it is
a wholly different
a quo
it is
risk.
Unless
attach.
44.
and the
Where the
destination
is
5
any other destination, the risk does not attach.
for
War,
3
4
5
p. 39.
Arnould, Ed.
Arnould, Ed.
Sellar v.
6, p.
452
6, p.
409.
McVicar
Way
v.
(1804), 1 B.
Sailing for
destinatlon>
62
SECT. 44.
1906.
Illustration.
The
Gibraltar.
for Carthagena,
which
is
The
45.
Change of
(1.)
Where,
after the
commencement
of the
the policy
when the
loss occurs.
voyage contemplated by
3
Illustration.
Policy on ship at and from Cadiz to Liverpool. Afterwards, without the consent of the insurer, the destination of the ship is changed to
Newfoundland.
The
insurer
NOTE.
is
The
ship
is
discharged from
Three
liability.
must be
distinguished.
First,
Simon Israel & Co. v. Sedgurick (1893), 1 Q. B. 303, C. A.; distinguished in the case of a warranty, Simpson v. Premier Underwriting
Association (1905), 10 Com. Cas. 198.
*
Arnould, Ed. 6, pp. 453, 458 Me Arthur, Ed. 2, p. 84 ; Woolridge v.
Soydell (1778), Dougl. 16 Tudor, Mar. Cas. Ed. 3, p. 125 Bottomley v.
Bovill (1826), 5 B. & C. 210; Simon Israel & Co. v. SednwicJt
(1893)
1 Q. B. 303, C. A.
3
Ibid.; and Tasker -v. Cunningham (1819), 1 Bligh H. L 87- ^0 R
R. 33.
4
Tasker v. Cunniiujham (1819), 1 Bligh H. L. 87, 102.
1
THE VOYAGE.
ship
may
63
start
45.
There
destination.
is
afterwards avoided.
a,
is
often inserted in
the policy.
46.
(1.)
'
Deviation.
^i
and
of deviation,
it is
may have
2
regained her route before any loss occurs.
(2.) There is a deviation from the voyage contem-
3
d
or
departed from
of
Where the course the voyage is not specifically
designated by the policy, but the usual and
;
(&.)
customary course
(3.)
departed from.
The intention to deviate is immaterial
must be a deviation
his liability
is
there
As
to distinction
further, Arnould,
64
SECT. 46.
own
exercise his
is
1906.
The owners
direct
him
to
Policy
lading
ship
port
She loads part of her cargo at K., proceeds to B., which
Liverpool."
is seven miles off, to complete her cargo, and returns to K. for provisions, and then sails for England, and is lost on the voyage.
proceeding^ B. and back again is a deviation, and the insurer
Time
3.
policy against
fire
in the Victoria
The
is
not
Docks
with liberty to go into dry dock and light the boiler once or twice
This
is
a deviation. 3
wreck while
it
is
This
is
deviation. 4
NOTE.
by the
intermediate
which
see
Several
discharge,
It is immaterial
justify
ports,
see
deviation,
45, ante.
ficient
(1.)
Middlewood
Brown
p. 48.
p.
2,
2,
TEE VOYAGE.
them
or such of
by the
65
policy.
SECT 47>
-
geographical order.
them
as she goes
a deviation. 2
NOTE. In a case where three ports of discharge were specified in
" I
think that the voyage insured
the policy, Lord Ellenborough says,
to Palermo, Messina, and Naples meant a voyage to all or any of the
places
named
policy."
as
Illustration.
is
lost
2, p.
85;
cf.
month
On
the
recover. 5
Metcalf
v.
Parry (1814),
4 Camp. 123.
3
Marsden
Arnould, Ed.
British Ins.
Exchange (1828), 8 B.
caused by ice held
3
Arnould, Ed.
&
justified).
Delay in
voyage.
66
SECT. 48.
1906.
locality.
Compare Rule 5
in the
(1.)
policy
Where
(&.)
or
caused
Where
(d.)
(e.)
Where
human
life
for the
may be
in
purpose of
(g.)
Where caused by
master or crew,
insured against. 7
Putter v. Glover (1810), 12 East, 124
6, p. 486
Taylor (1829), 9 B. & C. 718 Hyderabad Co. \. Willoughby
(1899), 2 Q. B. 530.
*
Arnould, Ed. 6, p. 499; Elton v. Brogden (1740), 2 Stra. 1264
(master forced out of his course by crew); Delany v. Stoddart (1776),
1 T. E. 22 (stress of weather).
1
Arnould, Ed.
Naylor
v.
p. 507.
6
33.
ASSIGNMENT OF POLICY.
67
SECT 49
the cause excusing the deviation or delay
ceases to operate, the ship must resume her course, and
When
(2.)
1
prosecute her voyage, with reasonable despatch.
Illustrations.
weeks at Marseilles
This delay
is justifiable.
"
To avoid capture
Ship wan-anted free from capture in port."
is ready for sea, and then proceeds to a
her
cable
before
she
slips
port out of her direct course to load. She is afterwards wrecked. The
2.
she
insurer
is
not
NOTE.
liable. 3
Where
Assignment of Policy.
50.
contains
(1.)
marine policy
is
assignable unless
it
may
of the policy
is
entitled
to
own name
2
3
assignee after
When and
It js^Xnable -
68
SECT. 50.
make
name
y/rJ
1906.
if
-^-was effected.
-,
Some American
NOTE.
assignment.
Subsect.
&
(2)
reproduces
policies require
1 of the Policies of
Marine Insurance
Act (31
32 Viet.
c. 86),
which
is
whose benefit
The
owa.name. 1
Subsect.
/person
(3)
it
The
subsection
permissive in
assigned.
Assured
no Merest
in his
it
its
may be
may be
/\ policy
is
inoperative.
x
Browning
v.
loss.
Insurance, p. 52.
3
North of England Oil Cake Co. v. Archangel Mar. Ins. Co. (1875>
L. R. 10 Q. B. 249, and authorities cited for 15.
4
Lloyd v. Fleming (1872), L. E. 7 Q. B. 299.
THE PREMIUM.
69
Illustrations.
SECT.J.I.
ship
A., B.,
A.'s share
is lost.
(250) can be
recovered. 1
NOTE.
and
After
this right
who pay
loss,
can be assigned.
is total,
the total
the sale
is
If the loss
As
loss.
to the time at
under a contract of
and
32,
which the
sale, see
Primd
facie, property
and
risk
pass
together.
The Premium.
Unless otherwise agreed, the duty of the assured
or his agent to pay the premium, and the duty of the
52.
payment
NOTE. The term " agreed " includes a binding usage, for usage
binding as being an implied term of the agreement. Payment, it
is
is
As
to correcting error in
As
v.
premium by
Maspons (1883), 8 App.
24, ante.
70
SECT. 52.
is
term.
the agreed
It
1906.
includes a settlement in
See also
of doing business.
way
The broker
responsible to
Policy
effected
broker.
in
him
drawing up a policy
for
any want of
is
care. 1
(1.)
the
premium and
Illustration.
A,
employs
C.,
B.
C.
As
v. Sell (1815),
TEE PREMIUM.
71
has a lien on the policies for the premiums and charges, even though
A. may have paid B. 1
NOTE.
it is
It is a well-recognized practice in
marine insurance
for the
broker to
by
deemed to have paid the underwriter, and to have
borrowed from him the money with which he pays."
As regards payment of the premium, the London practice is for
fiction
he
premium
is
If
no broker
If he
abatements.
is
Thus
cent,
is
retained
s.
d.
'..
...
...
...
300
030
...
...
058
...
2 11
Premium
by
2 17
The underwriter
receives net
If a broker
2 14s.
4c?.,
FMier
is
v.
1 Q. B. 205,
SECT. 53.
72
SECT. 54.
Effect of
policy.
54.
Where
1906.
insurer
notice. 3
55.
(1.)
is
loss
any
against.
(2.)
In particular,
(a.)
The
insurer
is
is liable for
any
loss proxi-
Arnould, Ed.
6, p. 197,
and note
to
53.
774.
Taylor on Evidence,
3
See further, note to last section, and
(1897), 1 Q. B. Ill (accident policy).
4
Arnould, Ed.
6, p.
727
cf.
7,
p.
175
bills of
(&.)
for the
73
SECT. 55.
misconduct or
on ship or goods
is
by
rats
or
for
Illustrations.
Policy on goods, which consists of hides and tobacco. Seawater is shipped during a storm, which wets the hides. The hides
become putrid, and the fumes from them spoil the flavour of the
1.
tobacco.
The damage
to the tobacco
is
of the seas. 4
2.
Policy
hostilities."
74
SECT. 55.
/iJ</-
1900.
the light on Cape Hatteras. Owing to the absence of the light, the
The proximate cause of
ship runs on to the rocks and is wrecked.
loss
is
mortality and
In a storm some of the animals are so injured as to cause
their death.
The insurer is liable notwithstanding the warranty. 2
3.
jettison.
from the discharge pipe gets into the hold and damages the cargo.
This is a loss proximately caused by perils of the seas, or other perils
of a like kind, for which the insurer is liable. 3
5. Policy on a
parcel of gold shipped by a Russian ship to Turkey.
The ship is stranded in Turkey, and the gold taken charge of by
is liable.
assured has to pay the amount deficient to get his goods. The insurer
not liable. The loss is not caused by perils of the seas, but by the
is
" unless
free from average
and
into
collision
be
on
collision."
The
damage
consequent
ship gets
has to go into port for repairs. The cargo has to be landed and reshipped, and
it
is
damaged
partly
Most of the cargo was destroyed by the sea, but a small part was saved,
and a further part could have been saved but for the action of the Confederates, who prevented its being landed.
Held, as to this part, that the
warranty exempted the insurers from liability.
2
Lawrence v. Aberdein (1821), 5 B. & Aid. 107, 24 R. R. 299. Mortality = mortality from natural causes.
3
Davidson v. Burnand (1868), L. R. 4 C. P. 117.
4
Dent v. Smith (1869), L. R. 4 Q. B. 414.
5
Greer v. Pool (1880), 5 Q. B. D. 272.
75
and SECT.
The
The
insurer
is
not liable.2
including donkey-engine.
Policy on ship and machinery,
to a valve being kept closed, which ought to have been kept
open, water is forced into, and splits open, the chamber of the donkeypump. The insurer is not liable for this accident, for it is not caused
9.
Owing
by
by any
peril
policy.
The
10. Policy on freight from New South Wales to Valparaiso.
cargo consists of coal. The coal heats, and is in imminent danger of
taking fire. Half of it has to be landed at Sydney. The rest is carried
on and delivered.
Cargo of rice.
Rats
judgment for salvage services, which assured has to pay. The steamer
met with no extraordinary weather, and might in time have proceeded
Pink
cf.
Field Steamship
Co. v.
-
494.
4
Co. v.
C.
Williams
v.
Hamilton
v.
Canton Insurance
Office (1901),
A. C. 402.
(bill of
lading case,
55.
76
1906.
is
down
in subsect. (1).
As
man may
lawfully
sequent on the wilful act or default of the assured, that act or default
must be regarded as proximately causing the loss. Dolus circuitu
non purgatur. 5 Where, however, a ship is lost through the barratry
of the master,
recover. 6
who
is
see at p. 461 as
to "inherent vice."
2
Maxims
p. 431
of the
43 K. R. at
Co. (1903), 1
Law,
p.
K. B. at p.
cited
383;
Devaux
cf.
qua non.
3
Inman
p. 127, C.
A.
mortgagee).
&
1894 (57
58 Viet.
c.
77
sect.
60),
"
insurer
is
But
delay, though the delay result from a peril insured against.
difficult cases arise with regard to freight, especially as regards time
by
The
line
laid
down by
of the
these cases
Admiralty.
is
difficult
draw with
awkward.
had nothing
to
Cas. 26.
4
See,
H. L.
5
55.
78
SKCT. 55.
1906.
has often been observed," says Blackburn, J., " that a sale by the
is not one of the underwriter's perils, and is only material
as showing that there is no longer anything which can be done to
master
56.
Partial
n
g s.
total
Any
is
(1.)
loss other
a partial
(2.)
loss.
A total
whom
it
loss
may
may
than a total
concern."
be either
loss, as
total or partial.
hereinafter defined,
loss
a constructive total
may
loss.
loss,
or
loss.
Where
in specie,
(5.) Where goods reach their destination
but by reason of obliteration of marks, or otherwise, they
are incapable of identification, the loss, if any, is partial
and not
total. 7
Philpott v.
Pankin
v.
Arnould, Ed.
6,
Ronx
v.
Adam9
Iftdirmore
Wales Ins.
v.
society.
8
to
Arnould, Ed.
King
v.
57.
NOTE.
loss
must be
79
total loss of
SECT. 56.
is
is provided for by
72 and 76 (1).
the presumption is a sti'ong one, an insurance
against total loss covers a constructive, as well as an actual, total loss.
But the presumption may be rebutted, see McArthur, Ed. 2, p. 312.
This
a single valuation.
Where
(1.)
1
deprived thereof, there is an actual total loss.
(2.) In the case of an actual total loss no notice of
loss. 3
only a partial
3.
p.
562
rice is so
Afterwards
The
rice
it
still
is
damaged
that the
kiln-dried at a cost of
remains in specie, so
this
loss. 4
Arnould, Ed.
Smith (1848),
at
is
ship
The
tides.
6,
v.
is
afterwards
H. of L. Gas. at 535
Cowman
She
(1873), L. E. 6 H. L. at p. 127.
2
Kaltenbacli v. Mackenzie (1878), 3 C. P. D. at p. 471, C. A. cf.
Rarikin v. Potter (1873), L. E. 6 H. L. at p. 106.
3
Roux v. Salvador (1836), 3 Bing. N. C. 266, Ex. Ch. cf. Farnworth
;
v.
Hyde
4
Actual
total loss>
80
1906.
SECT. 57. towed into port by salvors and sold, by order of the Court, for less
than the salvage costs. This is an actual total loss. 1
"
"
warranted free from all
4. Insurance on
profit on charter
This
is
a total loss of
on charter. 2
profit
total.
60.
Before the Act the rule as to goods was stated thus goods are
deemed to be an actual total loss where they are so damaged as to
cease to exist in specie, or as that they cannot be rendered capable of
Goods cease to exist in specie
arriving at their destination in specie.
when they no
may
which
still
Missing
Where
presumed.
NOTE.
may
be presumed
to be lost.
Cotvman
Asfar
v.
v.
loss.
v.
Canton Ins.
Semble an actual
Office,
total
A. C. (1901) 462
H. L.
3
81
is
such circumstances
SECT 59
-
Effect of
^Int,
to their
NOTK.
settled.
it
is
do
it is
reasonable to
so.
60.
actual total
its
because
it
In
there
particular,
incurred. 4
is
constructive
total
loss,
(i.)
ham
2
ArnouU, Ed.
6, p.
358
is
McArthur, Ed.
2, p.
263
Bold
cf.
v.
Rotlier-
(1846), 8 Q. B. at p. 808.
Hansen
v.
transhipment),
Dunn
is
(1906), 11
to
Cammell
v.
Sewell
4
Arnould, Ed. 6, p. 951
McArthur, Ed. 2, p. 146 Kaltenbach v.
Mackenzie (1878), 3 C. P. D. at pp. 473 and 479, per Lord Esher
Shepherd v. Henderson (1884), 7 App. Cas.at p. 70, per Lord Blackburn;
cf. Moss v. Smith (1850), 19 L. J. C. P. at p. 228.
;
Construcl
} oss
defined>
82
1906.
SECT. 60.
when recovered
(ii.)
1
;
or
ship,
where she
deduction
if
repaired.
(iii.)
1
Arnould, Ed. 6, pp. 1041, 1058; Roux v. Salvador (1836), 3 Bing. N.
C. at p. 286 (goods) ; Eodocanachi v. Elliott (1874), L. K. 9 C. P. 518, Ex.
Ch. (goods in besieged town) ; Sailing Ship Blairmore v. Macredie (1898),
A. C. 593
and see
illustrations to
62.
L %/
\bJL*.
B^rUOjL
subsection
was redrafted
in Committee.
83
SECT 6
-
Policy on ship. The ship gets on a rock and the master bond Ship.
He therefore
fide conies to the opinion that she cannot be saved.
sells her for
The buyer gets her off the rock and repairs her
18.
1.
at a cost of
750,
when
she
is
worth
1200.
This
is
not a total
loss. 2
ship
damaged by sea perils and puts into a foreign port.
The master, after communicating with the owners, has her repaired at
a cost exceeding her repaired value. After her arrival in London the
2.
is
This
is
is
ineffectual.
valued at
There
17,000.
is
In con-
sequence of sea damage she puts into Mauritius, where she is sold for
1400.
Her cost four years before the insurance was 20,000. The
cost of repairing her would have been
10,500, and her selling value
when
10,500.
This
^^_j^
/
Me Arthur, Ed.
2,
damage
Hyde
Gardner
v.
Fleming
v.
r *' C
(1866), L. R. 2 '2
to goods).
Y'
'^i,^
,
&
S. 9,
\kM * v
$.
84
SECT. 60.
~,
1906.
if
total loss,
There
is
on arrival. 1
7. Insurance on goods from Bombay to London with liberty to
send them through France. On arrival in Paris they are detained in
consequence of the siege, and it is uncertain what will become of
them.
2
treat this as a constructive total loss.
for salvage
This
costs.
is
a partial
loss,
loss. 3
Freight.
9,
The master
puts into
might have done, repairs the ship at a cost exceeding her repaired
money on bottomry. The ship arrives with her
On
cargo.
no
loss of freight. 4
10. Policy
on
The
freight.
ship
to insurers
on ship.
it
ship
wrecked
is
Roflocanachi
v. Elliott
(1873), L. E. 8 C. P. 649
affirmed L. R. 9
De Mattos
v.
cf.
Meyer
v.
RalU
(1876), 1 C. P. D. 358.
4
Benson
Scottish
Cas. 334.
v.
Chapman
(1849), 2
H. L. C.
v.
696, 723.
85
of freight. No freight is earned, because the goods are brought to their SECT. 60.
destination under a salvage contract, and not under the contract of
affreightment.
NOTE.
The
For further
illustrations, see
and compare
62,
57.
out.
is
therefore
2
general provision contained in subsection (1) of this section.
There is a constructive total loss, says Mr. McArthur, "
when
the
commonly
laid
down
that, for
its
is
loss,
bound
to take.
This, perhaps,
When
what the
is
is
not an
the test
is
particular owner, if
5
average prudence ought to do under similar circumstances.
Constructive total loss lies midway between actual loss on the one
hand and partial loss on the other. It is in effect a hybrid loss, and
H. of L.
p.
86
SECT. 60.
1906.
notice of
have
Again,
when
there
The
is
result
is
that the
of
outlines
If
it is
tobacco, there
is
an actual
total loss.
If
as a normal instance.
to the description of
partial loss.
is
view,
of the adven-
be a
loss of the goods by a loss of the voyage in which the goods are
being transported, if it amounts, to use the words of Lord Ellen
2
borough, to a destruction of the contemplated adventure."
total loss.
NOBS
liankin
*
v.
tration 7.
v.
is
if
87
when
the
fourths of
to the
damage
subject-matter insured
amount
to three-
its
value.
It
may still
ship.
(&)
repaired,. there is
Where, by a
peril
insured
61.
Where
there
is
Effect of
~
assured
may
As
"
constructive total loss is
Cotton, L.J., puts it,
of such a character that the assured is entitled,
the damage is
thinks fit, to treat
The
it
as a total loss."
2
3
is
he
when
if
at pp. 286, 287, Ex. Ch. Fleming v. Smith (1848), 1 H. of L. Cas. 513 ;
Rankin v. Potter (1873), L. E. 6 H. L. at pp. 118, 131, 135; and
Kaltenbach v. Mackenzie (1878), 3 C. P. D. 467,479, C. A., where abandon;
ment and
ibid.,
4
notice of
and Browning
Kaltenbach
v.
As
to election, see
tf
loss -
88
SECT. 62.
Notice of
01
me^t.
1906.
(1.)
(2.)
Notice of abandonment
may
be given in writing,
by word
2
ditionally to the insurer.
tion
of the loss,
is
is
of
entitled to a reasonable
Where
notice of
abandonment
is
properly given,
the rights of the assured are not prejudiced by the fact
that the insurer refuses to accept the abandonment. 4
(5.) The acceptance of an abandonment may be either
(4.)
acceptance.
(6.)
Where
notice
abandonment
of
is
accepted the
1
Arnould, Ed. 6, pp. 953-970 MeArthur, Ed. 2, p. 153. As to origin
of notice of abandonment, see Kaltenbach v. Mackenzie (1878), 3 C. P. D.
at p. 471, C. A., where the whole subject is discussed.
;
Arnould, Ed.
6, p.
957
Currie
v.
Bombay
P. C. at p. 78.
3
Arnould, Ed. 6, p. 960 Currie v. Bombay Ins. Co. (1869), L. E. 3
P. C. at p. 79 ; Ranlcin v. Potter (1873), L. R. 6 H. L. at p. 105 Kaltenbach
v. Mackenzie (1878), 3 C. P. D. at pp. 472, 478.
;
Me Arthur, Ed.
2, p.
Arnould, Ed,
L. E. 6 P. C. 224.
6,
156
and
illustrations below.
Leduc (1874),
is
irrevocable.
The acceptance
of
conclusively
at
89
the SEOT
and
unnecessary where
receives information of
is
Notice of abandonment
may be
waived by the
insurer. 3
(9.)
Where an
insurer
4
by him.
Illustrations.
sold for
what she
ment
given.
2.
is
A ship
is
On
will fetch.
This
is
the 10th of
March
notice of abandon-
too late. 5
of this
is
ineffectual.
This
only a partial
is
war
The
loss.
risks
is
1
Arnould, Ed. 6, p. 968 Provincial Ins. Co. v. Leduo (1874), L. K.
6 P. C. 224 (implied acceptance, waiver of breach of warranty). Where
notice of abandonment is not accepted, there is a conflict between the
;
242.
4
62 -
90
SECT. 62.
This
ship.
1906.
is
a total loss. 1
ment
ship
is
is
The
brought.
notice
is
valid,
for a total
loss. 2
5.
is
lost.
No
The
6. Policy on chartered freight from Pensacola to England.
ship gets into Havannah as a constructive total loss, and is abandoned. The cargo is brought home by the insurers. The adjustment
made at Liverpool, but by agreement in accordance with the law
of Havannah.
Under that law pro rata freight to Havannah is
is
The
payable.
insurer
is
The
Policy on freight from New Zealand to San Francisco.
strands [ne&i- Honolulu, and the cargo, which consists of coal,
7.
gets wetted.
Ship and cargo are both sold at Honolulu. If the coal
dried and sent on, the costs would have been more than its
had been
(ship
worth.
ment
is
There
is
necessary.
The term
NOTE.
allied, senses.
First,
total loss.
Thirdly,
it
by operation of law x of
Ruyt
cases.
3
4
p.
v.
Aliter
affirmed, ibid.
257, C. A.
5
119, C. A.
p.
91
it.
se
may
be withdrawn.
Cuilibet licet
irdroducto?
made. 3
Notice of abandonment can only be given by or on behalf of the
owner of the subject-matter insured, e.g. it cannot be given by a
pledgee of the policy, but it can be given by a joint owner who
4
manages for the rest.
It seems that where due notice of abandonment has not been
given, the right to give notice of abandonment may revive on change
abandon
is
of circumstances. 5
circumstances
The
is
2
3
4
132.
5
62.
92
SECT. 63.
Effect of
63.
(1.)
the insurer
is
Where
1906.
a valid abandonment,
entitled to take over the interest of the
there
is
01
men".
of the subject-matter
1
thereto.
incidental
insured, and all proprietary rights
the abandonment of a ship the insurer
(2.)
may remain
assured in whatever
Upon
thereof
is
entitled
to
any freight
course of being
in
to a
carrying the owners' goods the insurer is entitled
reasonable remuneration for the carriage of them subse8
quent to the casualty causing the loss.
Illustrations.
by an
iceberg,
Arnould, Ed.
6, p.
973
H.
H. of L. Gas. at
80.
118, 144 and
L., at pp.
2
Sea Ins. Co. v.
Hodden
(1884), 13 Q. B. D. 706, C. A.
Miller v. Woodfall (1857), 27 L. J. Q. B. 120 see at p. 123 as to the
American rule of apportionment.
3
Stewart
facts there
v.
no
Macq. H. L.
334.
4
Hid., p. 257, C. A.
93
freight.
The
ship.
insurer
is
As
NOTE.
Commons Committee
disclaim.
The words
"
is
entitled to
whatever remains
"
were altered
The proprietary rights which pass to the insurer on a valid abandonment must be distinguished from the fuller rights which pass to the
insurer when he pays for a total loss.
As Lord Blackburn says, " the
right of the assured to recover damages from a third person is not one
of those rights which are incident to the property in the ship. It
does pass to the underwriters in case of payment for a total loss, but
on a different principle and on the same principle it does pass to the
;
underwriters
who have
satisfied
Cas. at
1
p. 292.
Sharpe
v.
SECT. 63.
94
SECT. 63.
1906.
reasonably.
in
good
faith
and
ge
?oss
64.
particular average loss is a partial loss
(1.)
the subject-matter insured, caused by a peril insured
2
against, and which is not a general average loss.
f
(2.)
Particular
are
called
are
Particular charges
charges.
particular
common
safety,
maritime
peril,
all
parties concerned
in the adventure
the latter
is
falls." *
"
"
and
particular average
in
with
the
distinction
French
law
"particular charges" corresponds
between " avarie particuliere mate'rielle " and " avarie particuliere en
The
frais." 6
distinction in English
As to
law between
65
(2),
76
(2)
and
78
and as to
3
4
p.
201
Arnould, Ed.
7, p. 978.
PARTIAL LOSSES.
95
C on
sometimes SECT.
and
(1.)
those
perils.
"
"
Illustrations.
1.
ship valued at
2600
is
1200.
After
sum
He
ship,
but
comes
to
1200
that
is
insured.
is
(1884), 10
v.
361-445.
3
v.
Salvage
c
64.
96
SECT. 65.
1906.
The case proceeded on the ground that salvors, who intervene voluntarily and not under contract, are not the agents of the
assured, for English law does not recognize the foreign doctrine of
p. 792).
"
agents of necessity."
The
As
liability of
"
and the
salvor's reward.
It is
who
also used to denote the thing saved, as, for instance, in the phrase
"without benefit of salvage," or when a loss is referred to as a "salvage
loss."
Ballantyne
v.
McKinnon
(1896), 2 Q. B. 455, C. A.
PARTIAL LOSSES.
by the ordinary form
of policy
on
ship.
It
97
must be covered by a
SECT. 65.
1
special insurance.
called,
life
conjointly.
"With
regard to
special
consequence arising out of the character of mercantile enterand the fact that the thing saved was
66.
(1.)
general average loss is a loss caused by
or directly consequential on a general average act.
It
includes a general average expenditure as well as a
3
general average sacrifice.
(2.) There is a general average act where any extra-
ordinary sacrifice
reasonably
made
purpose of preserving
common adventure. 4
(3.) Where there
a general average
whom
on
it
falls
is
is
loss,
the party
cf.
1
Nourse v. Liverpool Sailing Ship Association (1896), 2 Q. B. 16, C. A. ;
Kennedy's Law of Civil Salvage, p. 46.
Falcke v. Scottish Ins. Co. (1887), 34 Ch. D. at p. 248; Kennedy's
Law of
Civil Salvage, p. 6.
General
98
SECT. 66. f
1906.
rom
is
(4.)
where
recover
may
in
may
3
recover therefor from the insurer.
insured against.
(7.)
those
of,
Where
interests,
ship, freight,
losses or contributions is to
subjects were
owned by
be determined as
different persons.
639
a peril
4, p.
301
Svensden
average
those
if
v.
Wallace (1885), 10
Cas. at p. 405.
4
Harris
PARTIAL LOSSES.
99
SECT. 66.
Illustrations.
1.
average act.
of them as an ordinary loss under the policy, but he then stands in the
place of the assured as regards claims for contribution from the other
contributories. 1
2.
The
salt, is jettisoned.
Liverpool.
ascertained
Constantinople. Average is adjusted according to the law prevailing there, and the damage to the wheat is charged to general average,
sum. 3
owner.
average
5.
for
respect of
the general
sacrifice. 4
Policy on ship.
Under
is
On
England.
the voyage out the ship grounds, and a general average loss
incurred in respect of the ship's machinery.
The chartered freight
is
is
1
Dickinson v. Jardine (1868), L. K. 3 C. P. 639. (London usage to
hold insurer only liable for the share of the loss cast upon the assured of
the jettisoned goods held invalid.)
See, too, Owen's Notes and Clauses,
Ed. 3, p. 249.
2
Fletcher v. Alexander (1868), L. E. 3 C. P. 375.
3
Marro v. Ocean Mar. Ins. Co. (1875), L. E. 10 C. P. 415, Ex. Ch.;
cf. The Mary Thomas (1894), P. 808, C. A.
and De Hart v. Compania
Anonima Aurora (1903), 1 K. B. 109 (general average payable as per
;
100
ship.
The
NOTE.
in 1801,
1906.
still
may have
a right to recover in
full for
but the underwriters have the right to contribution from the various
contributories, and, subject to certain differences of values, the result
to the underwriters should
if
the assured
his contribution
was twice
passage of the
Bill
now very
is
not
But where the shipowner is the same person as the cargo owner it
would be absurd to pay him the full value of the mast and thereby
become entitled to claim from him the cargo contribution. No doubt
(1901), 6
Com.
v.
BirMey
Cas. 291.
Ins. Co.
PARTIAL LOSSES.
101
condition. 1
in
is
an unsatisfactory
common law
liability,
under the policy. For example, suppose goods are insured with a
warranty free from capture and seizure. General average expenses
may
liable for
is
include in general average nearly all expenses incurred for the benefit
of the common adventure. As to the place of adjustment, and the
law
to
91, post.
Antwerp Rules [1890] if in accordance with the contract of affreightment." The York-Antwerp Rules, though generally accepted, only
cover a portion of the field.
It seems a moot point whether salvage charges, properly so called,
can ever be recovered as general average (McArthur, Ed. 2, p. 171, n.).
ship, freight,
and cargo,
361-445.
see Carver's Carriage by Sea, Ed. 3 (1900),
It is the duty of the shipowner and his agents to take such steps
as may be reasonable to provide that all general average contributions
(whether due to himself or others) are adjusted and collected, and he
has a lien on the cargo until this be done. 3
1
2,
p.
186,
and
article
by T. G.
Carver, on Port of Refuge Expenses, Law Quarterly Review, vol. viii. p. 229.
2
See Carver's Carriage by Sea, Ed. 3,
394-396, distinguishing
salvors, properly so called, who intervene voluntarily, from salvors em-
p.
&
335;
Co. v.
SECT. 66.
^W^l^f
1906.
*
Measure of Indemnity.
SECT. 67.
insurf/for
loss.
67. (1.)
Extent of
re spect of
measure of indemnity.
Where
(2.)
there
a loss recoverable
is
policy, the
insurer, or each
than one,
liable for
is
insurer
under the
there be
if
more
policy.
The
following cases
may
be put
1.
writers,
who each
the extent of
perils
1000.
Each underwriter
is liable
for
10 only.
2.
5000 is insured for
1000. The ship is
ship valued at
1000 in trying to get her off, but
stranded, and the owner spends
1000 on the
eventually she is totally lost. The insurer must pay
policy,
and
200
(i.e.
one-fifth)
1
Cf. Lolire \. Aitchison (1878), 3 Q. B. D. at pp. 564, 565, C. A.
affirmed on this point, but reversed on another, 4 App. Gas. 759.
2
Fire insurance losses are adjusted on a different basis. See post,
p. 1G2.
v.
J., in
Anglo-Californian
Com. Cas.
at pp. 8, 9.
Bank
MEASURE OF INDEMNITY.
It
103
is
4500 or
SECT. 67.
5500. 1
As
ment
to the suing
and labouring clause, which is a distinct engage79 and for a quasi exception, see 74.
where there
policy,
and to
is
Total loss,
(1.)
indemnity
(2.) If
is
the
sum
fixed
by the
policy.
As
NOTE.
to
69.
Where
a ship
is
policies, see
it,
damaged, but
see
is
16.
not totally
(1.)
Where the
is
the customary deductions, 4 but not exceeding the sum insured in respect of any
one casualty. 5
less
(2.)
Where the
Arnould, Ed.
and as
As
Me Arthur, Ed.
to the
Cas. at p.
p. 208.
1156; Irving
v.
v.
Macredie (1898), A. C. at
Manning
(1847), 1
H. of L. Cas.
16 and notes.
Partial loss
104
of such repairs,
computed
1906.
as above,
and also
tion,
any,
(3.)
not
from the unrepaired damage, but not exceeding the reasonable cost of repairing such
2
damage, computed as above.
Illustrations.
1.
and has
to put into
dock for
repairs.
Policy on ship.
it.
her surveyed for Lloyd's classification, but this does not increase the
time in dock. The insurer must pay the whole expenses of docking
the ship. 4
is
McArthur, Ed.
But
repairs.
to provide for
2, p.
220
cf.
them by
Stewart
special clauses.
v. Steele (1852),
Lloyd's
5 Scott N. K.
927, at p. 948.
2
Ibid.
Rudbon Steamship
v.
C. 6 H. L.,
distinguishing the Vancouver Case (1886), 11 App. Cas. 573.
5
See McArthur, Ed. 2, p. 213 Pitman v. Universal Mar. Ins. Co.
(1882), 9 Q. B. D. at p. 215 cf. Henderson v. Shanldand (1896), 1 Q.
Co. v.
at p. 530, C.
A.
MEASURE OF INDEMNITY.
105
69.
except as regards
'
f<
but is sold in her damaged state during the risk. In that case according to the majority of the Court in Pitman v. Universal Mar. Ins2
Co., the assured is entitled to the reasonable cost of repairing such
The
deductions, should be the sole measure of indemnity.
decision is unsatisfactory, because the other judges on appeal expressly
refrained from deciding what was to be taken as the basis of depreciausual
The
tion.
sale price is
other factor ?
As
Is
it
77, post.
where there
is
of freight lost
at;
MeArthur,
See
Pitman
v.
Ed.
2,
and
2, p.
235
cf.
Lowndes, Ed.
Stewart
2, p.
195
\. Steele (1852),
Denoon
v.
Home
Col.
Ins.
320;
Times, December 6. As to the facts which constitute a partial, as distinguished from a total loss of freight, see Ranldn v. Potter (1873), L. K. 6
H. L. at pp. 98-100, per Brett, J.
Partial loss
106
SECT. 70.
As
NOTE.
1906.
16
(2),
ante.
Partial loss
men-bandisc, etc.
follows
(1.)
Where
there
is
Where
moveables
the
lost,
totally
such
measure
the
of
of
sum
indemnity
fixed
is
by the
proportion
policy as the insurable value of the part lost
bears to the insurable value of the whole,
ascertained
as
in
policy.
(2.)
Where
(3.)
Where
the whole or
55
damaged
at
its
indemnity
McArthur, Ed.
Irving
2
v.
Manning
McArthur, Ed.
Irving
v.
Manning
2, p.
246; Lewis
(1847), 1
2,
p.
v.
H. of L. Cas. at
(1847), 1
see
MEASURE OF INDEMNITY.
place of
value.
"
(4.)
arrival
gross
sound
Gross value
if
bears to the
107
"
price, or,
sellers.
Illustrations.
1.
Unvalued policy on
coffee
from Jamaica
to
London.
The
insurable value, i.e. the invoice cost, plus shipping expenses and
200.
Half the coffee is damaged on the
charges of insurance, is
London market.
SECT. 71.
108
SECT. 71.
assured
whom
it
The 1400
obliterated.
may
concern.
damaged
This
is
1906.
is
to the extent
shown by the
sale of the
3. Policy
tea
is
sells in
The
insurer
is
is
damaged.
The
NOTE.
criticized,
whole
valueless. 4
clauses.
valuation,
(1.)
loss of part of a
75, post.
Where
As
for
by
different
to
which
See, further,
72.
Apportion-
e.g.
special
16
(3).
labels
3
4
and see
75, post.
MEASURE OF INDEMNITY.
109
Where
(2.)
SECT. 71.
particulars of the
may be made
As
NOTE.
mode
16
(3),
73.
the
full
amount
value
full
but
if
been a particular average loss which constitutes a deducand for which the in-
surer
is liable,
that
is
liable to contribute. 3
76, post.
2
Ibid.
3
See McArthur, Ed. 2, pp. 206, 210 Gow on Insurance, p. 301 Kules
of Practice of Association of Average Adjusters, 1906.
As to the effect
;
and Greer
McArthur, Ed.
2,
208,
v.
General
contri^u-
D
slivage
charges.
110
SECT. 73.
Where the
(2.)
insurer
is
1906.
principle.
Illustration.
The
40,000.
the insurer. 2
NOTE.
ante.
average
is
1600.
incurred, of
by the owner
The
insurer
is liable
for
15-16ths of
80, viz.
74.
Liabilities
parties.
Where
75.
But
is liable
if
for
him
to such
3
( ) on p. 109.
affirmed
Balmoral
v. Marten (1901), 2 K. B. 896, C. A.
Steamship
A. C. (1902) 511, H. L.
3
Arnould, Ed. 6, pp. 23, 24, and 730 McArthur, Ed. 2, pp. 320, 370,
and the ordinary forms of running-down clauses The Niobe (1891), A. C.
401, H. L. (collision); cf. Joyce v. Kennard (1871), L. E. 7 Q. B. 78
(lighterman's liability) Cunard Steamship Co. v. Marten (1902), 2 K. B.
1
See footnote
MEASURE OF INDEMNITY.
Ill
and SECT.
its ordinary form
does not depend upon the ordinary perils covered
liability
by the policy, but upon the special matters mentioned in the clause
different
the
itself."
74.
it
of the decision in
decisions. 3
The
insurer
caused by
not. 4
is
liable
The
entirely
in question. 5
limited
& 58 Viet.
c.
60),
British law
:
see
is
Merchant
Where
shall
(1.)
be ascertained, as nearly as
Xenos
v.
Fox
may
(1868), L. R. 3 C. P. at p. 635
be, in accordance
affirmed L. R. 4 C. P.
665.
-
3
4
As
112
SECT. 75.
1906.
to the]
ing to double insurance, or prohibit the insurer from disproving interest wholly or in part, or from showing that
Particular
warranted
cannot
(2.)
free
Where
is
warranted
is
See notes to
Co. (1893),
2
W.
by registered
letter).
See
McArthur, Ed.
1 C. P. 535
aud
2, p.
79.
312
Kidston
v.
Empire
E.
MEASURE OF INDEMNITY.
113
loss
up the
specified percentage.
incidental to ascertaining
loss
must be
excluded. 2
Illustrations.
Some
glass, etc.
rotten and
valueless.
1 Small
The
insurer
is
not
liable.
This
is
not a
and
Price
cf.
v.
Oppenheim
v.
Damage
Fry
*
As to two last paragraphs, see Rules of Practice of Association of
Average Adjusters, 1906. The expenses of protest, survey, and other
See post, p. 177.
proofs of loss are not included in the o per cent.
*
Duff v. Mackenzie (1857), 3 C. B. (X. S.) 16.
4
Great Indian Peninsula Railway v. Saunders (1861), 1 B. & S. 41
affirmed 2 B. & S. 266 discussed and explained Kidston v.
Empire Ins.
Co. (1866), L. R. 1 C. P. at p. 548.
;
76.
114
SECT. 76.
1906.
separate insurance of each bag, but of the whole of the linseed, and
the warranty applies accordingly. 1
4. Policy
all
The disbursements
was
to obtain
catches
fire,
aggregated.
"
Time
damages.
to
make up
the 3 per
cent. 4
while at sea.
up the
cent. 5
NOTE. A policy, or rather the contract contained in it, is apporwhere the policy itself provides for apportionment, or where
tionable
by usage
treated as apportionable.
it is
The
BalH
8
cf.
distance freight.
& J.
BlacJcettv.
Stewart
v.
244.
But
cf.
MEASURE OF INDEMNITY.
Thus
franchise.
cent., is
damaged
115
if
SECT. 76.
cent. 1
may
be added
2
together to make up the specified percentage.
In the case of a time policy, successive losses on the
same voyage
be added together, but losses occurring on different voyages
cannot be added together to make up the specified percentage. 3
may
(1.)
such losses
(2.)
may
followed
Illustrations.
A ship
1.
She
is
she
is
is
destroyed by
fire.
this
policy.
"
As
to the French
franchise," see Gow, p. 195.
McArthur, p. 295 and illustration 5.
3
Stewart v. Merchants' Mar. Ins. Co. (1885), 16 Q. B. D. 619, C. A.
see this case criticized, McArthur, Ed. 2, p. 297.
4
Arnould, Ed. 6, p. 985; Le Cheminant v. Pearson (1812), 4 Taunt.
367 cf. Aitchison v. Lohre (1879), 4 App. Cas. at p. 763.
5
McArthur, Ed. 2, p. 220 Livie v. Janson (1810), 12 East, 648. As
2
put.
is
Successive
116
SECT. 77.
2.
1906.
After insur-
policy.
On
ance she
chartered.
is
NOTE.
loss.
In Lidgett v. Secretan
for
on paying
is
12
clause"
to
possible."
As
Suing and
partial losses
and labouring
Where the
surance,
(1.)
to the clause,
(2.)
salvage charges, as defined by this Act, are not recoverable under the suing and labouring clause. 5
1
41 R. R. at
p. 342.
2, p.
(1906), 11
at pp. 765,
MEASURE OF INDEMNITY.
117
1
recoverable under the suing and labouring clause.
in
(4.) It is the duty of the assured and his agents,
all cases, to
may
be reasonable for
loss.
Illustrations.
1. Insurance on chartered freight, warranted free from particular
The ship in consequence of sea-damage becomes a conaverage.
and sent on
in another
The expenses
clause. 3
2. Policy containing a collision
clause.
The assured
is
sued for
running down another ship, and incurs costs in defending the action.
These costs are not recoverable from the insurer under the sue and
labour clause. 4
The
3. Policy on freight.
ship bound for L. is stranded at P.
cargo is landed, and, in order to earn freight, is sent on by rail to L. at
70.
a cost of 200. It might have been sent on by ship at a cost of
The insurer on freight is liable for 70 only, under the sue and labour
clause. 5
The
insurer
5.
perils,
is
liable to contribute
500. 6
Live cattle are insured against all risks. The ship, owing to sea
The cost of
is detained in a port of refuge for some weeks.
Kidston
Willes, J.
2 C. P. 357,
See,
too,
Cunard Steamship
Co.
v.
Marten (1902),
SECT 78
-
118
SECT. 78.
1906.
which no contract
who
112 per cent, on the insured value. If B. pays A., he can only recover
100 from C., for A., the first insurer, is not the factor, servant, or
3
assign of B. within the meaning of the sue and labour clause.
" to cover
8. Policy effected by shipowner
shipowner's liability of
any kind to owners of mules and cargo up to 20,000 owing to the
omission of the negligence clause in the contract."
The mules
are
9.
The
insurers
loss.
The
and labour
5
clause, or otherwise, for the expenses of salving the ship.
NOTE. The assured and his agents are bound by law to use all
reasonable efforts to avert or minimize a loss. 6 The suing and
119
labouring clause enables the assured to recover the expenditure involved SECT. 78.
from the insurer. The Continental Codes embody the
in those efforts
conditions of the suing and labouring clause, so that under those codes
the liability of the insurer is determined by law, whereas in England
it rests on contract.
" waiver
is usually supplemented by the
"
no acts of the insurer or insured in
clause," which provides that
recovering, saving, or preserving the property insured shall be con-
The
an assured shipowner
is
salve his ship, he cannot bring in his underwriters under the third
party procedure.
Where the
(1.)
may remain
whatever
in
and he
is
2
3
4
The words
doubtful law.
*
Arnould, Ed.
7, p.
1386
McArthur, Ed.
2, p.
158
Pankin
v. Potter
Lord Esher.
120
SECT. 79.
1906.
where the
^2.) Subject to the foregoing provisions,
insurer pays for a partial loss, he acquires no title to
the subject-matter insured, or such part of it as may
remain, but he is thereupon subrogated to all rights and
remedies of the assured in and in respect of the subject-
loss.
Illustrations.
The
1. Goods insured by a valued policy are captured and sold.
underwriters pay down 50 per cent, of the loss on account. Afterwards
the assured receives half the proceeds of the goods from the captors.
The
2.
A ship is missing,
If the
loss.
3
ship afterwards arrives she belongs to the insurer.
3. Policy on goods.
as a blockade -runner.
cruiser
insurer
The insurer
pensation.
tion so paid. 4
4.
pay as
is
9000.
is
a total
Ed.
2
loss.
Simpson
4
s
real value
v.
7, p. 1388.
is
Thomson
See
Her
She
H. L.
Arnould,
458.
The
121
sum
as salvage. 1
G. Cargo insured under a valued policy is destroyed by a Confederate cruiser.
The cargo is worth more than the valuation. After
whole of
this
is
7.
The
fault, for
4
prepaid freight for the benefit of the insurers on freight.
run
for
a
total
9.
is
and
the
insurer
ship
down,
pays
The
loss.
on ship is not entitled to the damages recovered by the shipowner from the ship in fault for loss of freight.5
10. Wool is damaged in a collision between lighters.
The insurers
pay the claim, and the assured assigns to them his rights against the
owner of the lighter in fault. That owner cannot set up the defence
insurer
that the
payment was
1
North of England Ins. Assn. v. Armstrong (1870), L. R. 5 Q. B. 244,
doubted, Burnand \. Eodocanachi (1882), 7 App. Cas. at p. 342; and see
81.
Arnould, Ed. 7, p. 1390, and see
2
Burnand v. Rodocanachi (1882), 7 App. Cas. 333, explained
Castdlain v. Preston (1883), 11 Q. B. D. at p. 404, per Lord Bowen and
Stearns v. Village Main Reef Co. (1904), 10 Com. Cas. 89, C. A.
;
Simpson
v.
v.
Thomson (1877), 3 App. Cas. 279, H. L. discussed MidSmith (1881), 6 Q. B. D. at p. 565 ; and Lowndes, Ed. 2,
;
p. 226.
4
5
6
'
of.
King
policy).
SECT. 79.
122
SECT. 79.
assured
indemnified
is
it
may
1906.
1
But suppose a ship valued at 5000
party more than he has paid.
how
is insured for
is
the
4000,
subrogation to be apportioned?
1000, is
Presumably the assured, being "his own insurer" for
the wreckage, the expense of which would exceed the value of the
The question has been discussed, but not decided, in
wreckage.
England.* In France,
it
See Pothier,
Traite d'Assurance,
136.
In Committee the words " is entitled to
"
take over were substituted for the words " is entitled to," and this
amendment strengthens the view that the insurer is not compelled to
remedies
in
the
name
of the assured.5
name
but
if
is
but
cf.
valuation.
2
6, p.
difficulty suggested,
3
4
123
79.
tribution
80.
Where
(1.)
the assured
is
over-insured by night
double insurance, each insurer is bound, as between himself and the other insurers, to contribute rateably to the
amount
(2.).
the
loss,
he
which he
is liable
remedies as a surety
tion of the debt. 2
Under the
and
is
his propor-
made
for successive
is
Ed.
t ion.
NOTE.
for
of
Arnould,
all
81.
Where
the assured
3
But for a qualifica84,
premium, see note to
purposes."
is
less
deemed
is
own
to be his
insured balance. 4
Ed.
Arnould, Ed.
655
Ins. Co. v.
2
3
4
Ed.
3, pp. 62,
6, p.
Bruce
6, p.
note to
980,
79.
and Ed.
7, p.
1374
Of. Arnould,
133,
and
Effect of
nsura nce.
124
1906.
NOTE.
SECT. 81.
ship,
valued at
If she is
1000.
3000,
is
damaged by
collision
to the extent of
300, A.
is
liable for
insurer
"
27
see
is liable
for
100.
will
As
100.
to valued policies,
(3).
Return of Premium.
82.
Enforce-
thereof,
"turn.
(a.)
Where
is,
by
may be
by the
retained
by the assured or
(b.)
If unpaid,
it
his agent.
it is
repayable to the
assured. 2
There
is
Return by
'
when
1121).
to
But
this
custom
is
473
or,
as
the case
may
be,
the
RETURN OF PREMIUM.
proportionate part thereof,
the assured. 1
84.
of the
(1.)
is
125
thereupon returnable to
Where
premium
Where
premium
is
any apportionable part of the consideration, a proportionate part of the premium is, under the like conditions,
3
thereupon returnable to the assured.
(3.) In particular
(a.)
Where
the
premium
is
returnable,
provided
that
(5.)
returnable
1
Arnould, Ed. 6, p. 1115; Owen's Notes and Clauses, Ed. 3, p. 122;
Kellner \. Le Mesurier (1803), 4 East, 396, 7 R. R. 581 ; Gorsedd Steamship Co. v. Forbes (1900), 5 Com. Cas. 413 (return after loss) ; cf. Rules of
McArthur, Ed.
SECT. 83.
2, p. 43.
ibid. t p.
1100;
for
sideration -
126
SECT. 84.
concluded, the
when
premium
is
1906.
the contract
not
safe arrival.
Where
(c.)
is
returnable
knew
of the
the assured
throughout the
has no insurable
currency
of
the
interest
risk
the
gaming or wagering.
Where the assured has a
(d.)
(e.)
Where
premium
is
returnable. 4
(/.) Subject to
returnable. 5
Provided that,
mium
1
Arnould, Ed. 6, p. 1111 and as to the proviso, see Bradford
Symondson, 1 Q. B. D. 456, C. A.
8
4 (2) ante.
Arnould, Ed. 6, p. 1109, and see
3
Boehm v. Bell (1799), 8 T. E. 154.
;
4
'
Arnould, Ed. 6,
Ibid., p. 1113;
insurance.
v.
p. 1112.
Me Arthur,
Ed.
2, p. 44,
and sec
32 as to double
RETURN OF PREMIUM.
knowingly by the assured
returnable.
no
127
premium
is
Illustrations.
1.
The
ship
is
captured.
an enemy's country.
void, as trading with an
to a port in
The insurance
is
2
enemy, and the premium is not returnable.
2. A ship insured at and from A., sails from A. with an insufficient
crew, and is lost. The insurer is not liable, and the premium is not
returnable. 3
policies effected
premium
is
on
effected
if it
is
not returnable. 6
6. A.,
who has
the ship has safely arrived, but neither party knows this.
re-insurance policy attaches, and the premium is not returnable. 7
The
added
6
Allkins v. Jupe (1877), 2 C. P. D. 375, see at p. 388 as to possibility
of salvage in such a case cf.
5, ante, reproducing this statute.
;
Bradford
v.
SECT- 84
128
SECT. 84.
7.
ship.
1906.
subsect. (3)
" The
may
not be exhaustive.
There
"
is
that where a
may be some
cases of
recovered back.
The
loss,
set of policies
he will
before the risk under later policies, so that under the earlier policies
the entire risk is run for a time, then the premium is only returnable
4
This qualification is really
by the underwriter of the later policies.
a deduction from subsect (3) (a). To get rid of this complication, and
to discourage over-insurance, Lord Herschell proposed that in case of
double insurance, premium should not be returnable, but the clause
now
stops
somewhat
short of this.
Mutual Insurance.
85.
Modificaf
incase of
ao ree
mutual
said to
(1.)
Where two
or
is
be a mutual insurance. 5
insurance.
1
2
3
4
Cf.
McArthur, Ed.
2, p. 44.
Marine Mutual
p. 358.
MUTUAL INSURANCE.
(2.)
The
of
provisions
this
Act
129
relating
to
the
upon,
not
to
may
NOTE.
members must be
"
upon successfully
be interposed.
for
The
many
first
joint
different purposes,
which were
had
positive in
to be recorded in
Mr Arthur, Ed.
2, p.
346
Lion
Ins.
Asm.
v.
Tucker (1883), 12 Q. B. D.
at p. 187, C. A.
"
AMI.
v.
Bed
"
\.
Leslie (1889), 22 Q. B.
D. 722;
Q. B. 299; North
Steamship Co. (1905), 10 Com. Cas.
v.
Jenkins (1900),
S"
21."..
Be Padstow
Edwards
Ex. Ch.
v.
Q. B. D. 563,
SECT. 85.
130
SECT. 85.
1906.
meet
the decisions."
The
by mutual associations omit the ordinary propremium. The omission is provided for by rules of the
Their
association which regulate members' contributions to losses.
policies therefore have to be construed together with the rules and
policies issued
vision as to
Supplemental.
Ratitica4*
(s
Where
86.
is
in
good
Vi
faith effected
assured.
This
in Williams v.
is
is
it
effected
is
aware of a
loss.
may
ratify the
but affirmed.
It
was questioned
"
I think," says
"
Cockburn, C. J., that this is a legitimate exception from the general
Where
rule, because the case is not within the principle of that rule.
Co.,
an insurance subject to
an agent
effects
likely to
happen before
ratification,
and
very
name on
implied
varied
by* arise
23
See
(1), ante.
87.
(1.) Where any right, duty, or liability would
under a contract of marine insurance by implication
agreement
or usage.
S UPPLEMENTAL.
131
be negatived or varied by express agree- SECTment, or by usage, if the usage be such as to bind both
1
parties to the contract.
of law,
(2.)
it
may
The
this Act,
by
which
may
be
1893 (56
This section
&
57 Viet.
c.
is
suggested by
71).
The
of the
law are
"
unreasonableness
This proposition
be either a
may
among
When
Taylor on Evidence,
1077.
Hart
As
to
v.
Brough
v.
160-200.
by Sea,
Whitmore (1791), 4 T. R. at
p. 210.
Usage,
87.
132
SECT. 87.
1906.
therewith
inadmissible. 1
is
concerned.
is
ambiguous,
Reasonable
a question
of fact.
88.
or,
as lawyers put
Where by
it,
this
to
annex incidents
to the contract.*
is
made
to
reasonable time, reasonable premium, or reasonable diligence, the question what is reasonable is a question of
fact.
NOTE.
Slip as
may
in
& 57
Viet,
c.
71).
Goodwin
v.
Ex parte Turquand
Cf.
Arnould, Ed.
For
6, p.
291
Parkinson
v. Collier,
premium); Attwood
Blackett v. Royal Exchange (1832), 2 Cr. & J. 244 (usage not to pay for
boat slung outside, invalid); Palmer v. Blackburn (1822), 1 Bing. 60, 64
(measure of indemnity, gross freight).
5
to
31.
4
McArthur, Ed. 2, p. 23
342 Ion ides
517, Ex. Ch.
Ed.
3, pp. 270,
Arnould, Ed.
v.
6, p.
260
Leake on Contracts
SUPPLEMENTAL.
133
Lord Blackburn says, " As the slip is clearly a contract for SECT.
marine insurance, and is equally clearly not a policy, it is, by virtue of
NOTE.
89.
these enactments (the stamp laws), not valid that is, not enforceable
at law or in equity but it may be given in evidence, wherever it is,
l
For example, the slip is evidence for
though not valid material."
;
whether, when the fact came to the knowledge of the assured, the
contract had or had not been concluded. 2
"
"
own goods
able
money
"
4
:
"
Moveables
"
"
Policy
NOTE.
means a marine
policy.
is
sometimes
used to denote the goods or cargo laden on board ship. More commonly it is used to denote the sum payable to a shipowner by a third
1
lonides v. Pacific Mar. Ins. Co. (1871), L. K. 6 Q. B. at p. 685 (name
of ship); cf. Empress Assurance Corporation v. Boicring (1905), 11 Com.
Cas. 107 (evidence not admitted).
2
Cory v. Patton (1872), L. K. 7 Q. B. 704 cf. Lishman v. Northern
;
Mar.
3
4
Arnould, Ed.
6, p.
31
Flint
v.
Flemyng
&
57 Viet.
(1830), 1 B.
&
c.
71).
Ad. 45
see
note, post.
interpretation of
terms.
134
1906.
SECT. 90. person for the use of a ship as a vehicle for merchandise. 1
In insur-
ance law the term has a wider meaning. In a case where it was held
" on
"
did not cover coolies' passage money,
that an insurance
freight
'
'
says
it
interest of the
As
charterer.
Savings.
91.
to "
(1.)
Nothing
in
&
55
(a.)
The
an actual or to a hypothetical
hired to
12.
this Act, or in
any repeal
provisions of the
or
any
25&26
(6.)
The
provisions of the
same
(c.)
The
*
:
provisions
of
any statute
not
expressly
this Act.
(2.)
repealed by
The rules of the
common
NOTE.
In England, as in the
relegated to special commercial tribunals.
United States, they are dealt with by the ordinary courts of justice.
The law merchant is part of the common law, and its special rules are
1
By English law, apart from special contract, freight is only payable
on right delivery of the cargo, and freight pro raid itineris is not recognized.
542.
Cf. Carver's Carriage by Sea, Ed. 3,
2
Denoon v. Home and Col. Ass. Co. (1872), L. R. 7 C. P. at p. 349.
3
See the stamp provisions set out, post, pp. 155-8.
4
See the notes to 85.
4
As to fraud and misrepresentation, see Leake on Contracts, Ed. 3,
pp. 291, 330 as to illegality, ibid. p. 620 as to mistake, ibid. pp. 202-287,
;
and Spalding
v.
SUPPLEMENTAL.
135
Marine insurance
is
SECT. 91.
If the
rules relating to
code.
destination, or,
when
the voyage
is
is
rightly broken
The
time
differences in
in
some curious
points.
December
at
10 p.m. according to
ship's time.
According to London time A.'s policy would have expired, and the risk
would be on B.'s policy. In the case of an English policy it seems
in the absence of any provision to the contrary, the liability
must be determined according to Greenwich time see the Statutes
(Definition of Time) Act, 1880 (43 & 44 Viet. c. 9), which applies
to ever}' English " Act of Parliament, deed, or other legal instrument."
But if the policy were effected in India the point would be a debatable
that,
one.
The stamp laws are part of the lexfori. Therefore, if a risk under
a Lloyd's policy is re-insured with a Swedish insurance company, the
Dicey
1 Conflict of
cf.
Wavertree Co.
v.
Love
(1897), A. C. 373, P. C.
2
adjustment clause).
Calculation
^ time>
136
subsequent
hostilities,
stamp laws
if it
is
2
Subject to the provisions of any license to trade, the insurer is not
for any loss suffered by an alien enemy during the continuance of
Effect on
policy of
1906.
]i a ble
,.
even though the policy may have been effected before the
commencement of hostilities. For example. 3
hostilities,
British ally.
4
brought after peace has been concluded.
2. Policy on gold bullion from Johannesburg to London, effected
by a company registered and carrying on business in the South
The assured
3.
is
it
entitled to recover. 5
effected in
is
The assured
seized.
are a
The
first is
in
our
common
law.
enemy,
i.e.
3
4
Royal Exchange
v.
554.
410.
Ibid.
fi
S UPPLEMENTAL.
without the king's
principle
is
licence.
137
in violation of this
SECT. 91.
of
is
own
made
hostilities,
country.
The
principle equally
previously to the
commencement
legal in its
subject,
mencement
92.
in
the
Second
Repeals.
For
list
93. This
day
Act
shall
come
Act, 1906.
NOTE. This Act, like all Acts passed subsequent to 1889, must be
read subject to the provisions of the Interpretation Act, 1889 (52 & 53
Viet. c. 63).
codifying Act, as Lord Herschell has pointed out, must be construed according to its natural meaning without regard to the previous
state of the law.
It is only in case of doubt that resort to the previous
law
1
is
legitimate.
Junson
Morgan
v.
v.
Vagliano
v.
Bank
of
Enyland
(1891), A. C. at p. 145
H. L.
138
SCHEDULES.
FIRST SCHEDULE.
FOKM OF POLICY
BE
IT
well in
KNOWN THAT
whom
or in all
(See
30).
as
own name
of all
as for
and in the
whereof
is
end
The
filled
(')
( )
( )
"
blank ( 7 ) " as above " ( 8 ) " as above
" A.
B. 100 bales of cotton valued at 1000."
left
10
'
;
FOEM OF
by whatsoever other name
the master thereof,
is
139
POLICY.
or
names the
or shall be
named
said ship, or
or called
begin-
and so
moored
upon the
at anchor
and stay
and
sail to
The
and touch
voyage
seas,
men
of war,
fire,
and countermart, surprisals, takings at sea, arrests, restraints, and detainments of all kings, princes, and
people,
of
in case of
and travel
for, in
and
Sue and
140
1906.
Waiver
And
ment.
is
and goods
and
N.B.
Corn,
in 1779, but
scheduled to statutes
Viet.
c.
23).
now
3, c. 63,
and 30
&
31
to its drafting.
FORM OF
Mansfield, C.J., has described
Lawrence,
J.,
has described
as
as "
it
it
141
POLICY.
" a
very strange instrument."
laxity,"
and
"a
policy of assurance has at all times been considered in courts of law as an absurd and incoherent instrument, but
it is
The
Many
stancy.
Every line, and almost every word, of it has been judicially construed,
and has now acquired a conventional meaning.
The policy is framed as a ship and goods policy. Hence presumably the letters S.G-. in the margin, though some learned persons
" salutis
gratia"
suggest that those letters stand for
The policy consists of three inter-related but distinct engagements,
namely, the insurance, the sue and labour clause, and the memorandum,
and if a collision or " running down " clause be inserted that also is a
distinct
engagement added
to the policy.
All British insurance law has been developed through cases arising
on the policy. In so far as those cases appear to establish general
principles,
The
policy
itself,
interests
and
to
as noted above,
To make
it
is
framed
apply to other
"
The
decisions on these
Le Cheminant
Marsden
3
4
v.
Hydarnes
500, C. A.
cf.
S.S. Co. v.
Dudgeon
\.
Q. B.
142
3, p.
and
for forms of
1906.
American
policies
and
p.
233.
See
p. 170.
Act for
like form,
It is to
Lost or
not lost.
From
jog^" an(j
At and
[Ship.]
Where
1.
"
a ship is insured " at and from a particular place, and she is at that place in good safety when
3
the contract is concluded, the risk attaches
Where
3.
(a.)
(&.)
immediately.
is
McArthur, Ed.
Gledstanes
(re-insurance)
2
3
v.
and
McArthur, Ed.
McArthur, Ed.
see
2, p.
6 and notes.
81
2, p. 81
43 and notes.
Arnould, Ed. G, p. 388 and
v. Marshall (1831), 8
Bing, 79.
;
Palmer
good
it is
143
is
is
"
insured " at and from
[freight,]
good
safety.
Where
freight, other
"
NOTE. The expression " good safety has a technical meaning. It
denotes (a) that the ship is in the possession of the assured, and not
under capture or arrest, and (6) that she exists as a ship, even though
damaged.
4.
Where goods or
the loading thereof," the risk does not attach until such
1
Me Arthur.
Fro1
the
thereof.
144
190G.
NOTE.
is
commonly included
a supplementary provision.
by
^ ^ ere tne
7
**'
fanded
I1S ^
on
gds or
"
if
they are
3.
Difficult questions sometimes arise where the cause of loss
comes into operation before the expiration of the policy, but the actual
Rule
thirty days
Where a
policy.
v.
Titherington (1864), 5 B.
at 7 p.m.
and was
&
S.
765 (ship
(1904), 40*C. A.
May
lost
145
Touch and
stfiv
"
ever
1
port of destination.
"
The term
7.
perils
of
the seas
"
refers
only to
It does
Perils of
<f^f
^~*~~7
NOTE.
//?
was the
an alternative
worthy
ship,
definition given
damage
to
may be noted.
"
denotes something which is accidental and
the term " peril
As Lord Herschell says, " the purpose of the policy is to
fortuitous.
secure an indemnity against accidents which may happen, not against
"
events which must happen."
Secondly, the expression is
perils of
For example, the policy enumethe seas," not " perils on the seas."
First,
rates
expressly covered,
frozen meat risks.
e.g.
cf.
46, 47.
6, p. 471 ; Gow on Insurance, p. 58
McArthur, Ed. 2, p. 110; Arnould, Ed. 6, p. 754; cf. Carver's
Carriage by Sea, Ed. 3, 85 cf. 55 (2) ante.
3
Thames and Mersey Mar. Ins. Co. v. Hamilton (1887), 12 App. Caa.
at p. 492 (the Inchmaree case); see Paterson \. Harris (1861), 30 L. J.
Q. B. 354, distinguishing the chemical from the mechanical action of the
sea; cf. Blackburn v. Liverpool Steam Navigation Co. (1902), 1 K. B. 290
1
Arnould, Ed.
(bill of
lading case).
>
<^
&* e
/- ^'
146
1906.
Fire.
steam, nor a
insured, but
it
fire
does cover a
2
rule to this effect was formerly included in
capture by an enemy.
the Bill, but was cut out by the Lord Chancellor's Committee, as it
was suggested that the decisions it embodied might some day be
For example
questioned.
Policy on hemp.
liable to ferment,
is
If
and
is
is
not
Though
from
hemp
fire is in
is
lost,
fire
thereby
hemp
is
As
Pirates.
8.
and
rA*^*?
,A*}~
:>
NOTE.
#/UK4.-For
9.
IK %)**'
The term
theft, or a theft
7
company, whether crew or passengers.
1
Hamilton v. Pandorf (1887), 12 App. Gas. at p. 525; Wilson v.
Owners of Cargo per Xantho (1887), 12 App. Cas. at p. 509.
2
See McArthw, Ed. 2, p. 115; Arnould, Ed. 6, p. 759; Gordon v.
Rimmington (1807), 1 Camp. 123; 10 E. E. 656 (fire to avoid capture)
Thames and Mersey Mar. Ins. Co. v. Hamilton (1887), 12 App. Cas. 484,
493 (explosion of steam).
;
Camp. 133;
cf.
Pirie
v.
-:.
147
The
which
theft that
is
furtum non
est
Some
American policies use the words " pirates and assailing thieves." In
a case on a bill of lading containing the exceptions "pirates, robbers,
" thieves "
thieves," it was held that the word
applied only to strangers,
and not to persons belonging to the vessel and Archibald, J., after
pointing out that the words were no doubt copied originally from the
;
ordinary marine policy, expresses the opinion that a similar construcmust be put upon both instruments. 1
tion
The term
10.
"
arrests,
etc.,
of kings, princes,
and Restraint
"
process.
Illustrations.
Taylor
v.
Liverpool G.
On October
W. Steam
Co. (1874), L. B. 9 Q. B.
546, at
p. 551.
McArthur, Ed.
2, p.
128
p.
Aubert
v.
Gray
148
seized
is
October
1906.
11
not
is
liable.
This
is
a loss
policy on a bull to
Voyage
all risks,
local authority.
An
NOTE.
to
The
insurer
is
3
protected by the warranty.
91.
is
illegal,
see
note
Lord Kenyon,
this
desire of the authors in question to give a distinct and different meaning to such words as 'capture,' 'seizure,' 'arrest,' 'detention/ and
restraint,'
their
by
rule,
at sea
blockade,
123.
ibid., p.
K. B. 489, C. A.
St.
Nesbitt v.
Ins. Co. v.
11.
149
"
act wilfully
Barratry.
may
be, the
charterer. 1
NOTE.
This definition
post, p. 163,
on
and discussion
See Note B,
thereof.
"
" all other
includes only perils
perils
The term
12.
is
definitions of barratry,
All other
s<
policy.
13.
The term
"
"
means a
chares."
be a general average
cent., unless it
Arnould, Ed.
6, p.
774
cf.
loss
"
;
99,
100.
8
Arnould, Ed.
6, p.
words,
3
"
all
789; Cullen
Ins.
Co. v.
Average
general.
150
1906.
points out that from the time of Lord Mansfield the words have been
Where
14.
Stranded.
p. 164.
stranded
the
although the
insurer
loss is
is
not
when the
NOTE.
It
"
is
unsafe to attempt a
The
question
is
or harbour
'
Price
v.
591.
2
See McArthur, Ed. 2, p. 283 Arnould, Ed. 6, p. 821 Thames and
Mersey Mar. 1m. Co. v. Pitts (1893), 1 Q. B. 476 (goods iii lighters, not on
board); The Alsace Lorraine (1893), P. 209 (goods landed at port of
refuge) cf. Russell v. Erwin (1890), 6 Times L. K. 353, as to when a
;
barge
3
is
stranded.
Welle v.
Hopwood
approved in Letchford
(1832), 3 B.
v.
Oldham
&
Ad.
20, at p.
34
where
outfit, stores
"
"
The term
15.
ship
and provisions
151
Ship.
and engine
stores, if
engaged
in
The term
"
"
freight
Freight.
his
"
NOTE. The term " freight
same sense as in the policy. See
17.
The term
"
"
is
90, ante.
means goods
goods
effects or
16, ante.
Denoon
\.
Home and
v.
*
See J/c Arthur, Ed. 2, p. 58 Arnould, Ed. 6, pp. 24-28 Gow on
As to meaning of "merchandise" in a contract of
Insurance, pp. 44-46.
263. The rule as to
affreightment, see Carver's Carriage by Sea, Ed. 3,
deck cargo probably does not apply to inland voyages by river or canal,
B. 252, cessante
Apollinaris Co. v. Xord Deutsche Ins. Co. (1904), 1 K.
;
See,
e.g.,
62,
and
notes.
152
to undertake anything
risk,
1906.
the policy ought
Hence
it
fact
Scott v.
Mannheim
153
SECOND SCHEDULE.
SECT. 92.
ENACTMENTS REPEALED.
Session and
Extent of Kepeal.
Chapter.
19 Geo.
2. c.
28 Geo.
An Act
to regulate insurance
on
37.
3. c.
56.
An Act
it
so
relates to
marine insurance.
thereof. 2
31
23
3
86.
Policies of
Marine Assurance
The whole
Act.
3
Act, 1868.
See
354
CUSTOMARY DEDUCTIONS.
(See Section 69 (1).)
making good
Use
of shears, stages,
use.
voyage.
first
Nails,
felt,
off,
lost.
1
See McArthur, Ed. 2, pp. 184, 213 cf. Goic on Insurance,
Eules of Practice of Association of Average Adjusters, post, p.
;
to
p. 339,
173.
and
APPENDIX
155
STATUTES.
I.
"
91. For the purposes of this Act the expression
policy of insur- Meaning of
"
includes every writing whereby any contract of insurance is policy ot
ance
,
,
,
,
insurance,
made
nade or agreed to be made, or is evidenced, and the expression
"
1
insurance includes assurance.
.
92.
(1.)
sea insurance
For the purposes of this Act the expression " policy of Meaning of
"
means any insurance (including re-insurance) made policy of
commencement
by the insurance.
the
sea insur-
ance.
APPENDIX
156
93.
Contract
(1.)
to be
as
&
26
25
Viet.
c.
63.
js
I.
Merchant Shipping
be valid unless the same is
shall not
Policy for
voyage and
ti
chargeable
with two
duties.
me
stamped
or to extend to or cover
No
policy
valid
unless duly
95.
(1.)
time after
*
it
wo
is
,,
cases following
(a.)
that
is
may
to say,
Any
thereon may,
(Z>.)
Any
Kingdom on payment
in the United
&
Amendment
Act, 18G2
now
506 of the
repealed, and reproduced in
Merchant Shipping Act, 1894 (57 & 58 Viet. c. 60). The saving effected
by this section is curious. The object of the Merchant Shipping Act was
(25
to
26 Viet.
make
limited
c.
63), is
it
marine
3
policies.
The
23 of the Act,
reproduced in
the names of the subscribers or underwriters,"
though more applicable to individual insurers, include a body corporate.
ante, p. 34.
The words
"
STATUTES.
157
(2.) Provided that a policy of sea insurance shall for the purpose
of production in evidence be an instrument which may legally be
stamped after the execution thereof, and the penalty payable by law
v.t,
,.
policies
policy ot sea insurance alter the policy has been underwritten ; pro- ma y be
vided that the alteration be made before notice of the determination made under
c * r tai n re ~
of the risk originally insured, and that it do not prolong the time
stnctions.
covered by the insurance thereby made beyond the period of six
months in the case of a policy made for a less period than six months,
.
remain the property of the same person or persons, and that no addi
tional or further sum be insured by reason or means of the alteration. 1
97.
(a.)
Penalty on
(1.) If any person
assurin S
becomes an assurer upon any sea insurance, or enters into
contract
for
sea
or
any
insurance,
directly or indirectly policy duly
stamped, or
(6.)
makes or
(c.)
is
guilty of
he
shall for
At common law a
contract
fine of
may be
Ed.
2,
pp. 47-49.
to forgery.
As to the alterations which do
stamp, see Arnould, Ed. 6, p. 267 McArthur,
amount
new
2.
APPENDIX
158
I.
FIRST SCHEDULE.
Where
the
premium
sum
(2.)
Gd. per
centum of the
insured
001
(a.)
any
(&.)
sum
fractional part of
of
003
For time
In respect of every
also
any
full
sum
of
100,
and
100 thereby
fractional part of
insured
Where
Where
six
six
made
made
see
and 97.
003
for
months and
And
for
months
STATUTES.
159
57 VICT.
1893.
c. 71.)
I'nli'ss
/'
1'roviiled that where delivery has been delayed through the fault
of cither hn\ er or seller, the goods are at the risk of the party in fault
irds
any
loss
Provided also that nothing in this section shall affect the dutiea
or liabilities of either seller or buyer as a bailee of the goods of the
other party. 1
32.
^3.) Unless otherwise agreed, where goods are sent by the Duty of
seller to the buyer by a route involving sea transit, under circurn- f eller as to
stances in which
to
the buyer as
transit,
be at
and,
if
it
is
may
deemed
to
An
1894.
which the
hall
liability
of owners
is
% 11.
E0w.
risk.*
1901.
7, c. 7.)
'
clauses in
BM
,
,,.,
1'nrt
liability of the
policies of
54&5S
yict.
c.
39.
APPEND IK L
160
new
by the continuation
clause attaches
and
policy
is
time not exceeding thirty days after the risk has so attached.
(4.)
clause
"
" continuation
or the like
effect,
namely, that in the event of the ship being at sea or the voyage
otherwise not completed on the expiration of the policy, the subjectmatter of the insurance shall be held covered until the arrival of
the ship, or for a reasonable time thereafter not exceeding thirty
days.
Stamping
of policies
on ships
struction
etc.
EDW.
1903.
7, c. 46.)
sna ^ ^ e sufficiently stamped for the purposes of the Stamp Act, 1891,
and the Acts amending that Act, if stamped as a policy of sea insurance
made for a voyage, and though made for a time exceeding twelve
months shall not be deemed to be a policy of sea insurance made for
time.
This section was inserted in consequence of the decisions in CharlefCom. Cas. 408, and Eoyal Exchange v. Fegra(1901),
2 K. B. 567 affirmed (1902), 2 K. B. 384, C. A. In the latter case, a
twelve-months-time policy contained a continuation clause to the follow" Should the
vessel be at sea or abroad on the expiration of
ing effect
this policy, it is agreed to hold her covered until her arrival at the port
of final destination in the United Kingdom at a pro rata daily premium
to the within."
It was held that the continuation clause must be construed as part of the original time policy, and as extending the insurance
beyond the legal twelve months.
1
APPENDIX
NOTE A.
II.
NOTES.
THE
See
following definitions of marine insurance may be referred to :
ante" Marine insurance is a contract
whereby one party, for a
stipulated sum, undertakes to indemnify the other against loss arising
1.
from certain
perils
other interest
may
period of time."
"
2.
Marine insurance
is
a contract whereby
who
is
interested
McArthur, Ed. 2, p. 1.
" Marine insurance is a contract
3.
whereby for a consideration
stipulated to be paid by one interested in a ship, freight, or cargo
subject to marine risks, another undertakes to indemnify him against
some or
all
on Insurance, 1 (U.S.).
" Assurance
4.
maritime,
que
the assured buys from the insurer an indemnity from risk, Pothier
proceeds to classify the contract by describing it as (a) consensual,
(6) synallagmatic, for
it
(c)
aleatory,
peril
sur soi
et
le
charge de Tev^nement.
1,
APPEND IK
162
du Guidon de
tirde
la
mer
II.
Emerigon, Ch. I.
6. "Assecuratio est conventio seu contractus quo quis in se suseo
cipit incertum periculum cui alter est obnoxius que e contrario
nomine
J., in
illi
premium retribuere tenetur."
Lvcena v. Orauford (1806), 2 B.
Grotius
&
"A
cited
P. at p. 300,
is
by Lawrence,
H. L., and see
a contract of indemnity
Most of these
definitions
is
an
essential
members
Besides, a policy
consideration. 1
seal,
life
2
indemnity, the latter is not.
occurrence only is uncertain.
money
may be under
Death
is
a contract of
is
Moreover,
human
life
is
its
incapable of
valuation.
In a
fire
insured for
of guarantee, see
p.
792,
and
NOTES.
NOTE
B.
1G3
DEFINITIONS OF BARRATRY.
Barratry, in the
is
referred to :
"
1.
Barratry, in English law,
may
Arnould, Ed.
"
2.
Any
crew of a
6, p.
775.
vessel,
a criminal deviation
consent,"
Lockyer
v.
is
barratry,
if
the deviation be
Offley (1786), 1 T. K.
259
without their
1 K. B. 197, per
Willes, J.
6.
"
Barratry
is
in the
particular relation
and owners
****
APPENDIX
164
II.
of the seas.
'
Ellenborough says, In order to constitute barratry, which is a crime,
the captain must he proved to have acted against his better
judgment,"
If the master commits a criminal act with the privity of his owners
it is not barratry ; but if the master be a part-owner his barratrous
act is none the less barratry as against innocent co-owners and
shippem*
if
it
would
Engaging in
and
NOTE
See
64,
C.
Dansmos
or AVERAGE.
Me
The word
is
'
avaria."
v.
NOTES.
165
"
In insurance law the use of the word " average is very puzzling.
fact is, the law has been developed piecemeal by decisions, and
The
known
78)
is different.
"
average unless general," as used in the memoto Lloyd's policy, is a good illustration of the confused use of
" a
the word.
It appears to mean
partial loss of the subject-matter
a
which
is
not
See ante, p. 149.
insured,
general average loss."
The
randum
expression
jettison is liable
insurer
though
is
l>ecause
P. 113.)
"
pour les merchandises, conjointement ou separement." Code de Commerce, Art. 397. "Les avaries se divisent en deux classes. Elles
sont (1) simples ou particulieres ; (2) grosses ou communes." .BraI'ard-Demangfat, Ed.
7, p.
475.
Willes, J.
APPENDIX
166
NOTE D.
63
and 79.
See
11.
DEFINITION OF ABANDONMENT.
"
abandonner," but the corre(from the French
"
spending term in insurance is delaissement "). In ordinary language
the term "abandonment" is used as the equivalent of "relinquish-
ABANDONMENT
raent."
But
in
indefinite
meaning.
assured signifies to the insurer his election to abandon ; and (3) the
cession which takes place, by operation of law, of whatever remains of
the subject-matter insured when the insurer pays for total loss.
I. In marine insurance, where there is a constructive total loss, the
assured
may
reasonable time, to cede to the insurer, as from the date of the casualty
causing the loss, whatever may remain of the subject-matter insured,
together with all proprietary rights and remedies incident thereto, and
claims that
may
ensue from
its
ownership, and
all
may
from
its
and claim
to
what may be
saved, leaving it to him to make the most of it for his own benefit.
It operates as an assignation."
Belt's Principles of the Laws of
484.
Scotland,
" L'acte
par lequel 1'assure quitte et delaisse aux assureurs les
droits, noms, raisons et actions de propriete qu'il a en la chose assuree."
loss, it is
owner
defined to be a cession
to the underwriter,
and of
all
NOTES.
bis property
and
interest in
it,
with
all
167
may
arise
from
ownership, and all the profits that may arise from it, including the
freight then being earned. Its operation is as effectually to transfer
the property in the ship to the underwriter as a sale for valuable conits
Per Martin,
sideration."
B.,
L. R. 6 H. L. at
p. 144.
The
election to
'
The
cession or
"
is
a very different
loss,
the assured
bound
to
the term
is
insurance, he
by taking
who
satisfaction
There
is
is
no
transferred
faction
'
as for a total loss, the property in what remains of the ship, and all
rights incident to the property, are transferred to the underwriters as
the time of the disaster in respect of which the total loss is
The right to receive payment of freight
claimed for and paid.
accruing due but not earned at the time of the disaster is one of those
from
and
it
therefore passes
APPENDIX
168
II.
become
it
is
person
the ship
it
******
total loss,
it
partial loss,
who have
satisfied
a claim for a
" Mason
(4 Bing.
It could
only
arise,
arise,
from the fact that the underwriters had paid an indemnity, and so
were subrogated for the person whom they had indemnified in his
personal rights from the time of the payment of the indemnity."
v.
Per
Gas. at pp.
292, 293.
L.J., proceeds to point out that abandonapplicable to every claim for a total loss, whether actual or
" If
constructive.
there is anything to abandon, abandonment must
ment
is
take place as, for instance, when there is an actual total loss, and
that which remains of a ship is what has been called a congeries of
planks, there must be an abandonment of the wreck. . . . But that
;
NOTE E.
See Sched.
I.,
Kule
8.
DEFINITION op PIRACY.
f.
gea
js
169
NOTES.
Then
there
statute
is
the
common law
definition of piracy,
p. 264.
a ship might be criminally liable for piracy on facts which would not
constitute piracy within the meaning of a mercantile document, such
as a charter party or marine policy.
be cited :
The
following definitions
may
"Piracy is defined by the text writers to be the offence of depredating on the seas without being authorized by any sovereign state,
or with commissions from different sovereigns at war with each other."
1.
Pirala non
est
perdudlium numero
definitus, sed
communis
hostin
omnium.
"
Piracy, by the law of nations, is taking a ship on the high
within the jurisdiction of the Lord High Admiral, from the
or
seas,
possession or control of those who are lawfully entitled to it, and
carrying away the ship itself, or any of its goods, tackle, apparel, or
3.
furniture,
if
It is doubtful
to
4.
forcible robbery at sea, whether committed by
Piracy
marauders from outside the ship or by mariners or passengers within
it.
The essential element is that they violently dispossess the
master, and afterwards carry away the ship itself or any of the goods
'
APPENDIX
170
with felonious
intent.'
"
II.
Carver's Carriage
by Sea, Ed.
3.
94, citing
The law
be.
of such state
may
Law,
new
definition to its
own
Wolsey, International
137.
6.
"
correct
The charge
exposition
of Sir Charles
of
the law as to
gentium. Piracy is only a sea term for robbery, piracy being a robbery
within the jurisdiction of the Admiralty. ... If the mariners of any
ship shall violently dispossess the master and afterwards carry away
the ship
at p. 199.
It. v.
McCleverty (1871),
"
8.
Piracy may be said to consist in acts of violence done upon
the ocean or unappropriated lands, or within the territory of a state
through descent from the sea, by a body of men acting independently
of any
politically
organized society."
Hall's
International
Law
NOTE F.
The
Loans on bottomry
origin of marine insurance is obscure.
are of very ancient date. Money lent on bottomry is not repayable
in case of loss, and marine insurance, the earliest form of insurance,
may
twelfth century, and some time later it was introduced into England,
probably by the merchants of the Steelyard, the representatives of the
JIanseatic League, whose treaty privileges in England were abolished
171
NOTES.
in 1578.
history.
1589.
Wray,
tried before
C.J.
1601.
First
The 43
Eliz. c.
12
the Act was not repealed expressly till 1863. See Martin, p. 49.
Earliest extant English policy. It almost exactly resembles
1613.
the form given in the Guidon de la Mer, published in France in 1600,
for the most part is in accord with the Lloyd's policy now in use.
See Martin, p. 46.
and
1688.
First
mention
of
Lloyd's cofiee-house,
resorted to
by
1730.
first
published.
See Martin,
p. 325.
1745.
1749.
2, p. 274.
Lord Mansfield
He
sat
till
1788, and
1769.
and established
1779.
In
Lloyd's policy settled in its present form and printed.
1850 a verbal alteration was made by omitting the introductory words
" In the name of
God, Amen," and substituting "Be it known that."
1788.
The Marine Insurance Act, 1788 (28 Geo. 3, c. 56),
requires the
1795.
name
Marine
all policies.
insurunce.
APPENDIX
172
II.
by 35
1 Q.
"
Shipping
The Gaming Act, 1845 (8 & 9 Viet. c. 109), makes void all
by way of gaming or wagering.
1862.
The Companies Act, 1862 (25 & 26 Viet. c. 89), provides
for incorporation of limited companies, and prohibits associations of
more than twenty persons from carrying on business unless incorporated.
See
1864. Re-insurance again legalized by 27 & 28 Viet. c. 56.
Mackenzie v. Whitworth, 1 Ex. D. at p. 40.
The policies of Marine Assurance Act (31 & 32 Viet. c. 86)
1868.
provides for assignment of policies and empowers assignee to sue in his
1845.
contracts
own name.
1871.
(34
&
35 Viet.
1891.
&
55
&
1894.
The Merchant Shipping Act, 1894 (56
57 Viet. c. 60),
consolidates the laws relating to merchant shipping.
11 of the Finance Act, 1901 (1 Edw. 7, c. 7), authorizes
1901.
continuation clauses under certain conditions.
1906.
1906
(6
Edw.
The law
7, c. 41).
of marine insurance developed
more rapidly
in
France
1681 the French law of marine insurance was codified by the Ordonla Marine.
The great works of Pothier and Emerigon
nance de
appeared in the eighteenth century, and with their assistance the Ordonnance of 1681, with various improvements and additions, was reenacted in 1808, by the existing Code de Commerce, Arts. 332 to 439.
The French code formed the basis of the other continental codes,
now
mercial codes, and in so doing have departed more or less widely from
the original model. The latest is the German Commercial Code of
1897, which
came
NOTES.
NOTE
G.
173
The
Association of Average
Adjusters with regard to particular average may be cited in amplification of the notes to the text of the Act.
The complete Kules,
relating both to general
and
The
appended
to the
That claims
Confirmed 1875,
on ships
p. 19.)
shall not
be stated
Confirmed 1875,
p. 19.)
Apportionment of Costs in
(Proposed and accepted 1889,
Collision Cases.
collision,
and
been
plaintiff or
defendant in the
of such litigation,
counterclaim in proportion to the amount which has been or would
in respect of
being
established;
As
Cariebrwlc Co. \.
p. '297,
per Mathew, J.
APPENDIX
174
II.
Where a
vessel
is in
Confirmed 1897,
p. 24.)
is
removed
thence to some other port for the purpose of repairs, either because
the repairs cannot be effected, or cannot be effected prudently
(a)
The
(6)
is
and where the vessel loads a new cargo at the port of repair
no expenses subsequent to the completion of repair shall be
allowed.
The expenses
Coals
and
of Damage
to the Hull.
channels, bulwarks, or
rails.
NOTES.
Sails split or blown
175
1876).
by the wind,
or
underwriters.
p. 26.
Confirmed 1901,
p. 41.)
Dry Dock
Expenses.
p. 26.
Confirmed 1892,
p. 28.)
is
due for
The deduction
one-sixth only.
Metal sheathing
felt,
The
It
to one-third.
wooden
ships,
and to
APPEND IK
176
II.
and to the
expense of straightening bent ironwork,
(1890-91)
It
It
and graving
cartages, use of shears, stages,
does not apply to a ship's first voyage.
dock materials.
made
materials as are
in
average on ship.
In
lieu
of note
to
viz.
to
and
spirits
That
in
consequence
of
the
p. 64.
Confirmed 1868,
p. 24.)
to
bond
goods at their destination, on which terms they are often sold, the
"
term " gross proceeds shall, for the purpose of adjustment, be taken
to
mean
the price at which the goods are sold to the consumer, after
freight and landing charges, but exclusive of Customs
payment of
it is
sell
or deal with
That where
p. 43.
Confirmed 1886,
p. 23.)
in the policy at a lump sum, such sum shall, for the purpose of adjusting claims, be apportioned on the invoice values, where the invoice
distinguishes the separate values of the said different qualities or
descriptions
NOTES.
177
p. 47.
Confirmed 1883,
p. 48.)
by
for loss
hin.
When bales of cotton are picked, and the pickings are sold wet,
the allowance for water in the pickings (where there are no means of
ascertaining it) is by custom fixed at one-third.
Allowance for Water in Cut Tobacco (Custom of Lloyd
When damaged
cuttings
is
tobacco
is
cut
off,
s,
1876).
one-fourth.
'
in
claim without
them.
When
the words
"
" and
follow the stipulation for a return
arrival
is
taken.
INDEX.
ABANDONMENT,
when
required, 88
121, 166
note on definition
of,
of, 8,
166
ABANDONMENT OF ADVENTURE,
61
ACTION,
defined,
133
ACTUAL TOTAL
LOSS,
79, 86
ADJUSTMENT OF LOSSES,
See
102-119
MEASURE OF INDEMNITY.
ADVANCE FREIGHT,
insurance
effect of
of,
19
abandonment on, 92
ADVANCES,
insurance
of, 5, 11,
ADVENTURE
insurance
18
(MARINE),
of, 4,
legality of, 6,
59
abandonment
of,
frustration of,
86
61
AGENT,
of
of insurer, 35, 36
shipping agent, 28
ratification of insurance effected by, 130
INDEX.
180
"ALL OTHER
PERILS,"
"ALL
4, 7,
RISKS,"
7,
145, 149
149
ALTERATIONS IN POLICY,
157
AMOUNT INSURABLE,
quantum of interest, 20
insurable value, 22
sum
APPORTIONABLE RISKS,
147
ASSIGNMENT,
of policy, 67
of interest in subject insured, 22, 68
ASSURED,
defined, 1, 34
must have insurable
interest, 8
faith,
25
33
by agent, 29, 30
representations pending contract by, 30
not bound to disclose opinion, 32
warranties by, 51-60
responsibility for disclosure
36
premium
to,
124-128
ratification of insurance
far his
by agent, 130
own
insurer, 123,
124
AVERAGE,
note on meanings
of,
164
INDEX.
181
of,
173
BAILEE,
insurable interest
of,
11, n.
BARRATRY,
what the term
164
loss
BILL OF LADING,
construction of perils
in,
145
BLOCKADE-RUNNING,
not
illegal,
must be
disclosed, 6
BOATS,
covered by policy on ship, 132,
n.,
138
BOTTOMRY,
insurance on, 18, 39
BROKER,
may
own name,
premium, 70
not the insurer's agent, 70
lien of, on policy, 70
liability for
concealment by, 29
representations by, 30
BUILDING RISKS
insurance
stamp on
"BURNT,"
of,
(SHIP),
policy, 4,
160
146
CANCELLING CLAUSE,
CAPTAIN.
See
MASTER.
34, 68
INDEX.
182
CARGO,
when
14
See GOODS.
CARRIER,
insurable interest
of, 10,
21
CAUSA PROXIMA,
rules as to, 72, 73,
74
154
CHAIN-CABLES,
CHANGE OF VOYAGE,
effect of,
62
CHARGES OF INSURANCE,
CHARTERED FREIGHT,
insurance
20,
23
11
of,
commencement
of risk on,
143
See FREIGHT.
CLAUSES (SPECIAL),
construction
of,
141
COALS,
covered by policy on steamship, 23, 151
spontaneous combustion of, 75
COLLISION,
running-down clause and
its
when proximate
cause of
COMMENCEMENT OF
74
RISK, 142
COMMISSION,
is
insurable, 5
broker's commission, 20
COMMON CARRIER,
insurance by, 10, 21
disclosure of special contract with, 27
COMMON LAW,
saving
for,
COMPANIES ACTS,
effect
saving
CONCEALMENT,
25-29.
See NON-DISCLOSURE.
183
INDEX.
CONDITIONING CHARGES,
106
84
CONSEQUENCE OF HOSTILITIES,
when proximate cause
of loss, 73
CONSIGNEE,
insurable interest
of,
20
CONSTRUCTION,
of policy, 130, 142
of Marine Insurance Act, 137
is,
effect of,
81
87
notice of abandonment, 88
valuation clause in policy disregarded, 39
test,
CONTINUATION
CLAUSE,
*
^^
.
85
37,' *159
~\
CONTRACT^
insurance a contract of indemnity,
2,
161
CONTRIBUTION,
between
CORN,
a memorandum
article,
123
140
COST PRICE,
basis of insurable value of goods, 23,
COVERING NOTE,
defined, 1
no action
to enforce, 32,
CRAFT (RISK
33
132
OF),
r
no warranty of seaworthiness, 56, 57
144
special clause to cover,
106
184
INDEX.
CREW,
insurance of wages, 18
provisions for use of, 22
negligence
of,
73
USAGE.
PARTICULAR AVERAGE.
See
computed, 144
DEDUCTIONS,
customary, in average on ship, 105, 154, 175
DELAY,
in
^^ CrA^
+*-*<-
commencing adventure, 60
66
excuses
66
for,
restraint of princes,
77
147
DEVIATION,
what
is,
and
excuses
for,
66
64
63
DISBURSEMENTS,
insurable, 5
terra, 38, n.
DISCLOSURE,
by assured of material facts, 26-29
by agent of assured, 29
of ships' papers and documents, 25
DOUBLE INSURANCE,
rules as to,
45
INDEX.
ENEMY'S GOODS,
EVIDENCE,
136
slip or
of unseaworthiness, 57
EXCLUDED LOSSES,
72
EXPLOSION OF STEAM,
not covered by ordinary policy, 75, 77
EXPRESS WARRANTIES, 50
EXTRA CHARGES, 107, n.
F. P. A.
WARRANTY,
FIRE,
meaning of term
112-115
in policy,
146
FIRE INSURANCE,
compared with marine, 162
FLOATING POLICY, 43
FOREIGN ADJUSTMENT,
FOREIGN LAW, 134
FRANCHISES,
FRAUD,
96, 101,
135
114
in valuation, 39,
42
concealment of material
facts,
26-29
FREIGHT,
meaning
in
insurable interest
advance
freight,
commencement
in,
11
19
of risk on, 143
when
notice of
effect of
185
186
INDEX.
FRUSTRATION OF ADVENTURE, 86
"FULL INTEREST ADMITTED," 9
FURNITURE (OF
GAMING
POLICIES,
are void, 8, 9, 60
no return of premium, 125, 127
GENERAL AVERAGE,
liability
of insurer
97-101
for,
no
149,
KJK
165
1AA
100
fF
4
f
1
4.'
1
A-l
effect of valuation clause on, 41,
conflict of
laws as
to,
135
GOOD FAITH,
insurer
GOOD SAFETY,
meaning
of,
warranty
144
53
of,
GOODS,
restricted
meaning
insurable value
of,
in policy, 151
23
commencement of risk
on, 143
of,
79
transhipment
of,
of,
81-87
81
176
GREENWICH TIME,
GROSS PROCEEDS,
meaning
of,
107
GROSS VALUE,
meaning
of,
107
135
154
INDEX.
187
HISTORY,
of marine insurance, 170
HONOUR
POLICIES. 6^10
HOSTILITIES,
warranty free from consequences
trading with
enemy
of,
73
blockade-running, 6
HYPOTHECATION,
gives insurable interest, 5, 10
master's power of, 18
ILLEGALITY,
of adventure, 6, 8
136
IMPLIED OBLIGATIONS,
may be
IMPLIED WARRANTY,
general nature of, 48
of seaworthiness, 53, 58
of legality, 59
none as to nationality, 52
INCHMAREE CLAUSE,
INDEMNITY,
marine insurance based on,
different theories of, 24
rV*-
measure
"
/
-v\J"[
of,
102-119.
See
INHERENT VICE, 73
NSUBABLE INTEREST,
INSURABLE VALUE,
rules for determining,
2,
161
MEASURE OF INDEMNITY.
8-22.
See INTEREST.
22
"//
duty as to disclosure, 29
'
/"
responsibility for
lien for charges,
premium, 70
70
188
INDEX.
INSURER,
defined, 1
to good faith, 25
what material facts he is presumed
execution of policy by, 35
duty as
rights as to
to
premium, 69
rights of,
when
know, 29
124
on abandonment, 92
on payment, 119
assured
is
INTEREST (INSUEABLE),
wagering policy void, 8
definition of interest, 10
15
20
re-insurance, 16
bottomry, 18
wages of master or crew, 18
advance freight, 19
charges of insurance, 20
quantum
of interest, 20, 21
INVOICE COST,
basis of adjustment
IRON SHIP,
particular average on, 104, 154
ISSUE OF POLICY,
JETTISON,
36, 69
99, 100
LAND RISKS, 3
LEAKAGE AND BREAKAGE,
LEAVE TO CALL, 145
73
LEGALITY,
of adventure, 6
INDEX.
LIABILITY (TO THIRD PERSON),
may be insured against, 5
adjustment of
110
losses,
LIEN,
of broker on policy, 70
LIFE,
deviation to save, 66
LIFE INSURANCE,
contrasted with marine, 162
LIFE SALVAGE,
96,
97
LIGHTERAGE,
must be disclosed, 27
no warranty of seaworthiness, 57
LIMITED INTEREST,
insurance by person having, 21
LLOYD'S,
history
of,
usages
of,
170
132, n.
36
execution of policy
at,
..
LLOYD'S POLICY,
form
138
of,
in, 44,
underwriters' subscription, 36
issue of, 36
ike POLICY.
LOSS,
meaning
of,
of voyage, 86
LOSSES,
included and excluded, 72
partial
and
total loss,
78
missing ship, 80
constructive total loss, 81,
85
142-152
189
190
INDEX.
LOSSES
continued.
94
salvage charges, 95
See
MEASUKE OF INDEMNITY.
116
MARINE ADVENTURE,
ADVENTURE.
See
defined, 4.
MARINE INSURANCE,
definition of, 1,
161
risks, 3,
is
1, 2,
161
MARITIME PERILS,
definition of, 5, 6, 7
MASTER,
barratry
of,
negligence
149, 163
of,
73,
76
authority to hypothecate, 18
authority of tranship, 81
MATERIAL FACTS,
what
are,
26
duty to disclose,
26
INDEX.
191
MAXIMS,
Aliud
est celare,
aliud tacere, 28
modus
et
MEASURE OF INDEMNITY,
measure of insurable value, 22
general principle of adjustment, 102
total loss,
103
103
105
106
and other
liabilities,
111, 173
MEMORANDUM,
form, 140
construction, 149, 150
MERCHANDISE,
meaning of the term, 150, 151
MISREPRESENTATION,
in negotiating contract,
30-32
generally, 134, n.
MISSING SHIP, 80
MISTAKE,
35, 134,
of,
20, 21
double insurance, 47
MORTGAGOR,
insurable interest
of,
double insurance, 47
20, 21
192
INDEX.
MOVEABLES,
defined,
133
MUTUAL INSURANCE,
rales as to,
128-130
NAME,
of assured in policy, 34
of insurer, 34, 35
of master of ship, 35, n., 138
of ship, 35, 138
NATIONALITY,
warranty
of,
52
NEGLIGENCE,
of assured, 76
of master or crew, 73, 76
NEUTRALITY,
warranty
NEW FOR
of,
51,
52
OLD,
NON-DISCLOSURE,
Jby^assured in negotiating contract, 26, 27, 28
by agent orassurea72^30
NO THIRDS,
105
NOTICE OF ABANDONMENT,
rules as to, 88,
89
OPEN POLICY,
ambiguous meaning
See
UNVALUED
of,
41
POLICY.
OPINION,
assured need not disclose, 32
OUTFIT,
what covered by insurance on
ship, 23,
24
INDEX.
193
OVER-INSURANCE,
measure of insurable value,J22
by valued policy, 39, 42
by double insurance, 45
duty tpdisclose, 27^42
premium, 126
""return of
OWNER OF
SHIP.
See SHIPOWNER.
OWNERSHIP,
distinguished
from insurable
21
with, 159
necessary, to give notice of abandonment, 91
risk
P.
P.
I.
POLICY,
8,
PARTIAL INTEREST,
is
insurable, 16
PARTIAL LOSS,
definition,
recovery
78
for,
on claim
78
salvage charges, 95
general average, 97
173-177
PARTICULAR AVERAGE,
definition,
94
INDEX.
194
PARTICULAR CHARGES,
defined,
94
PASSAGE MONEY,
insurable, 5
"
not included
in freight, 133,
151
PERILS OF THE
SEAS,
cause of
75
of,
78
PILOT, 56
PIRATES,
what included
in term,
note on piracy,
POLICY,
146
1 68
;<
- L^^'i^J^W^u^v_
denned, 1
in, 33
must specify, 34
execution and issue of, 35, 69
contract to be embodied
what
when
it
assignable, 67
for
72
voyage or time, 36
43
PORT,
what
.
is, 64,
r j- u
CA
severali P rts of
discharge, 64
(M*.
..
'
seaworthiness
for,
of departure, 61
56
142
144
% /3
^ ~(
'
INDEX.
PREMIUM,
defined, 2,
when
162
payable, 69
72
substitute in
PREPAID FREIGHT,
insurance
effect of
of,
19
PROFITS,
are insurable, 5
total loss of,
80
92, n.
22, 151
PROXIMATE CAUSE,
rules as to, 72,
73
RATIFICATION,
of insurance effected
by agent, 130
RATS,
losses
RECAPTURE,
89
RECEIPT,
effect of, in policy,
72
RECONDITIONING CHARGES,
RE-INSURANCE,
rules as to, 16, 17
designation in policy, 38
no notice of abandonment, 89
REMOVAL,
of ship for repair, 174
107
195
INDEX.
196
REPAIRS,
REPEALS,
137, 153
REPRESENTATIONS,
during negotiation of contract, 30
to warranty, 32
distinguished from warranty, 32
when amounting
18
RESPONDENTIA,
RESTRAINT OF PRINCES,
147
RETURN OF PREMIUM,
by agreement, 124
125
in other cases,
RISK,
meaning of term, 2
of,
144
of craft, 144
See INTEREST
ROBBERY,
12
VOYAGE.
146, 168
RUNNING-DOWN CLAUSE,
"SAFELY LANDED,"
144.
See
110, 111
144
GOOD SAFETY.
SAFETY,
SAILING WARRANTIES,
51
SAILS, 175
when
on
69
159
159
duty of seller as to insurance,
SALVAGE,
different
meanings
of, 95,
abandonment of,
life salvage, 96
of,
96, 97
197
INDEX.
SALVAGE CHARGES,
defined, 95,
97
when
SAVINGS,
Acts not expressly repealed, 134
common law and law merchant, 134
usages of trade, 131
SEAL,
policy under, 35, 162
SEAWORTHINESS,
of ship, 53
of substituted ship,
2,6-
of lighters, 57
of goods, 57
evidence of unseaworthiness, 57
SEVERAL POLICIES,
double insurance, 45
consecutive policies, 43
seaworthiness
of,
of,
22, 151
53
of,
81,
82
commencement
4,
160
SHIP OR SHIPS,"
floating policy by,
43
SHIPOWNER,
own goods, 92, 133, 134
99
general average, when he owns ship and freight, 98,
104
as
to
average,
duty
general
carrying his
SHIPPER.
See
ASSURED
SHORT INTEREST,
I"'2'
1
55
GOODS.
42, 112
((
>
It
'*-
198
INDEX.
SIGNATURE,
of insurer, 35
SLIP
OR COVERING NOTE,
defined, 1
when
STAMP ACT,
WARKANTY.
1891,
STATUTES CITED,
19 Geo. 2,
28 Geo.
5 Geo.
c.
3, c.
4, c.
Edw.
7, c.
3 Edw.
7, c.
STEAMSHIP,
what included in insurance on,
no thirds clause, 104, 105
23, 151
STOPPAGE IN TR ANSITU,
effect of,
STORES,
what
on insurable
interest,
22, 23
is,
effect of,
151
on policy, 151
15
INDEX.
STRANDING,
199
150
SUBJECT-MATTER INSURED,
what
really
is,
of, in
designation
policy, 37,
38
SUBROGATION,
distinguished from abandonment, 93, 121, 122, 1G7
on settlement of total loss, 119-122, 167
47
SUCCESSIVE LOSSES,
115
form
of,
of,
116-119
139, 140
TACKLE,
ETC.,
TEMPORARY REPAIRS,
TERMINATION OF
154
RISK, 144
THEFT,
meaning
of,
146
THIRD PARTY,
insurance against liability
to, 5,
110
THIRDS,
deduction,
new
154
TIME,
ship's time or Greenwich time, 135
reasonable, a question of fact, 132
TIME POLICY,
what is, 36
must not exceed twelve months, 36, 156, 157, 159, 160.
no warranty of seaworthiness, 54
calculation of expiration
158
of, 36,
37,
144
INDEX.
200
TOTAL
LOSS,
defined,
78
missing ship, 80
adjustment
of,
103
"
may be added
TRANSHIPMENT,
to, 1
17
145
84
82,
UNDERINSURANCE,
effect of, 123,
124
UNDERWRITER,
defined
See INSURER.
1.
UNSEAWORTHINESS,
53-58
See SEAWORTHINESS.
UNVALUED
POLICY,
defined, 42
when
adjustment of total
loss, 102,
103
103-108
adjustment of partial loss,
return of premium for over-insurance, 126
effect of under-insurance, 123,
124
USAGE,
141
policy founded on, 131,
130
course of voyage
when
landing of goods,
144
regulated by, 61
VALUED POLICY,
defined,
39
effect of valuation,
adjustment of total
,
39-42
loss, 103
105
106
201
INDEX.
VALUED POLICY
continued.
VICtfPROPRE,
58,
73
VOYAGE,
when it must commence, 60
abandonment of adventure, 61
change of voyage, 62
delay in voyage, 65
excuses for deviation or delay, 66
liberty to touch and stay, 145
termination
of,
144
56
VOYAGE POLICY,
what is, 36
stamp
oc, 159
effect of
adding
"
WAGERING
what
is,
POLICY,
8-10
void, 8, 60
no return of premium, 125-127
is
WAGES,
insurable
by master or seaman, 18
WAIVEE,
of disclosure
by assured, 26
of breach of warranty, 50
of notice of abandonment, 89
WAIVER CLAUSE,
WAR
RISKS,
119, 140
147, 148.
See HOSTILITIES.
144
202
INDEX.
WARRANTY,
nature and effect
47-49
49
of,
of,
52
as to nationality, 52
good
safety,
53
seaworthiness, 53-58
legality,
59
and
148
WEAR AND
TEAR,
73
policy, 8
WRIT,
fixes notice of
aliter in
abandonment, 91
YORK-ANTWERP RULES,
96, 101
THE END.
LIJIIIKD,