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INSURANCE, IV. V.
The Condition of the above-written obligation is such, that are incorporated, for that purpose, by the name of The Royal whereas the above-named C. D. hath, on the day of the date Exchange Assurance Annuity Company. Private underwriters above-written, lent unto the above-bounden A. B. ihe sum of may also enter into policies of this nature, if an insured chooses 5001. upon merchandizes and effects, to that value, laden or to to trust to their single security. be laden, on board the good ship or vessel, called the
To avoid the iniquitous gambling which had begun to take of the burden of tons, or thereabouts, now in the river place upon this, as well as on other insurances, the stat. 14 G. 3. Thames, whereof E. F. is commander. If the said ship or c. 48. provides, that i no insurance shall be made on the life oessel do and shall, with all convenient speed, proceed and sailor lives of any person or persons, wherein the person for whose from, and out of the said river of Thames, on a voyage to any use the policy is made, shall have no interest, or by way of ports or places in the East Indies, China, Persia, or elsewhere gaming, or wagering, but such insurance shall be null and void.” beyond the Cape of Good Hope, and from thence do and shall And, in order more effectually to guard against any imposition sail and return unto the said river of Thames, at or before the or fraud, and to be the better able to ascertain what the end and expiration of thirty-six calendar months, to be accounted interest of the person entitled to the benefit of the insurance from the day of the date above-written, and that without devia- really is, it is further enacted, by the same statute, “ that it tion (the dangers and casualties of the seas excepled): And if shall not be lawful to make any policy or policies, on the life the above-bounden A. B., his heirs, executors, or administra- or lives of any person or persons, or other event or events, tors, do and shall within days next after the said ship or without inserting in such policy or policies, the person's name vessel shall be arrived in the said river of Thames, from the interested therein, or for whose use or benefit, or on whose said voyage, or at the end and expiration of the said thirty-six account such policy is so made or under-written. And that in calendar months, to be accounted as aforesaid (which of the said all cases where the insured has an interest in such life or lives, times shall first and next happen), well and truly pay, or cause event or events, no greater sum shall be recovered or received to be paid, unto the above-named C. D., his executors, adminis from the insurer, than the amount or value of the interest of trators, or assigns, the sum of 5001. of lawful money of Great the insured in such life or other event.” Britain, together with — pounds of like money, by the calendar On this statute it has been determined, that the holder of month, and so proportionably for a greater or lesser time than a note for money won at play, has not an insurable interest a calendar month, for all such time, and so many calendar in the life of the maker of the note. Dwyer v. Edie, Park, months, as shall be elapsed and run out of the said thirty-six 432. calendar months, over and above lwenty calendar months, to be But a creditor has such an interest in the life of his debtor, accounted as from the day of the date above-written ; or, if in that he may insure it, and recover upon the policy. See the said voyage, and within the said thirty-six calendar months, Anderson v. Edie, B. R. sittings in Trinity Term, 1795 : to be accounted as aforesaid, an utter loss of the said ship or Park, 432; wherein Lord Kenyon said, “ that it was singular vessel, by fire, enemies, men of war, or any other casualties, that this question had never been directly decided before. That shall unavoidably happen ; and the above-bound A. B. his heirs, a creditor had certainly an interest in the life of his debtor ; the erecutors, or administrators, do and shall, within six months means by which he was to be satisfied may materially depend next after the loss, pay and satisfy to the said C. D. his exe- upon it, and at all events the death must in all cases in some cutors, administrators, or assigns, a just and proportional degree lessen the security." See also Tidswell v. Angerstein, average on all goods and effecis which the said Å. B. carried Peak's N. P. cases, 151. from England on board the said ship or vessel, and on all other But this being a contract of indemnity, if the debt is in any the goods and effects of the said A. B. which he shall acquire way paid, the assured cannot recover on the policy: resolved in during the said voyage, and which shall not be uuavoidably a case of assurance on the life of Mr. Pilt, whose debts were lost : Then the above-written obligation to be void, and of no paid by parliament. 9 East, 72. effect, or else to stand in full force and virtue.
To render a policy valid within the 17 G. 3. c. 48. a Sealed and delivered (being first
| pecuniary interest is necessary; and it was therefore held, that duly stamped) in the presence of s
a policy effected by a father on the life of his son, in which he
had no pecuniary interest, was void. 10 B. & C. 724. V. INSURANCE UPON Life is a contract by which the in- The above decision is said to have created considerable surers, for a certain gross sum, or, as is more usual, for an alarm, and it was stated in court during the trial, that policies annual payment proportionate to the age, health, and profes- like the one in question had been effected to the amount of sion of the person whose life is the object of the insurance, half a million. See Law Mag. 4 vol. 372. engage to pay the person for whose benefit the insurance is The general rules and maxims which govern insurances in effected, or the personal representatives of the party insuring, general, and on which so much has already been said, apply as the case may be ; either a stipulated sum, or an annuity, also to this species of them. The following are such as relate upon the death of the party insured whenever it may happen, more directly to the contract now immediately in question : if the insurance be made for the whole term of life, or if the As to the risk.-In a life-insurance the insurer undertakes insurance be for a limited period, in case of his death within to answer for all those accidents to which the life of man is exsuch period.
posed, except suicide, or the hand of justice. The death must These contracts have been found to be attended with so happen within the time limited by the policy, otherwise the inmany advantages, to persons whose incomes might otherwise surers are discharged: and though a man receives a mortal wound determine with their own lives, or those of others, that a during the existence of the policy, if he does not in fact die till society obtained a charter from Queen Anne for the purpose of after the expiration of it, the insurers are not liable. See granting such annuities, and still subsists, under the name of Willes' opinion in 1 T. R. 252. But if a man whose life is The Amicable Society for a Perpetual Assurance Office. A insured goes to sea, and the ship in which he sailed is never similar society is established, by deed inrolled in the Court of heard of afterwards, the questicn whether he did or did not King's Bench, at Westminster, called A Society for Equitable die within the time insured, is a fact for the jury to ascertain Assurances on Lives and Survivorships. The two companies of from the circumstances. Patterson v. Black, Park, 433. The Royal Exchange and London Assurance also obtained a A policy was made for cne year from the day of the date charter for the same purpose: and by stat. 33 G. 3. c. 14. the thereof: the policy was dated September 3, 1697. The person two companies of The Royal Exchange Assurance for insur- died on September 3, 1698, about one o'clock in the morning, ing of ships, and for insuring houses, &c. against fire, are and the insurer was held liable. 2 Salk. 625: 1 Ld. Raym. authorised to grant annuities for lives or on survivorship; and 480. To prevent disputes, it is now usual to insert in the
policy the words, the first and last days included. Park, | up by their own managers, and a copy given to every person 436.
at the time he insures; so that by his acquiescence he submits With respect to the loss.—This sort of policy being on the to their proposals, and is full apprised of those rules, upon the life or death of a man, does not admit of the distinction between conipliance or non-compliance with which he will or will not total and partial losses. Park, 434.
be entitled to an indemnity. There are not, therefore, many Fraud equally vitiates policies on lives, as it does those in cases on the subject, in our law books. The following are the marine insurances. Pr. Ch. 20: 2 Vern. 206. But where most requisite to be noticed :there is a warranty that the person is in good health, it is suffi- The London Assurance Company insert a clause in their cient that he be in a reasonable good state of health : for it proposals, by which they declare, that they will not hold them. can never mean that he is free from the seeds of disorder. Andselves liable for any damage by fire occasioned by any invasion, even if the person, whose life was insured, laboured under a foreign enemy, or any military or usurped power whatever. particular infirmity; if it be proved by medical men, that in Under this proviso it has been held, that the insurers were not their judgment, it did not at all contribute to his death, the exempted from, but liable to make good, a loss by fire occawarranty of health has been fully complied with, and the in sioned by a mob, which arose under pretext of the high price surer is liable. 1 Black. Rep. 312: Park. 432, 439.
of provisions, and burned down the plaintiff's malting house. The conditions of a life insurance required a declaration of 2 Wills. 363. the state of the health of the assured, and the policy was to be The Sun Fire Office, in addition to the above words, adds, valid, only if the statement were free from misrepresentation civil commotion. It was held, that under these latter words and reservation : the declaration described the assured as resi the company were exempt from, and not liable to satisfy, losses dent at Fisherton Anger; she was then a prisoner in the occasioned by rioters, who rose in the year 1780, to compel county gaol there: held, that it was a question for the jury, the repeal of a statute which had passed in favour of the whether the imprisonment were a material fact, and ought to Roman Catholics. Langdale v, Mason, Park, c. 23. be communicated. 6 Taunt. 186.
When a loss happens the insured is bound by the proposals It is the duty of a party effecting an insurance on life or of most of the societies, and ought, in all cases, to give immeproperty to communicate to the insurer all material facts diate notice of the loss, and as particular an account of the within his knowledge, touching the subject-matter of insurance; value, &c. as the nature of the case will admit. He must also and it is a question for the jury, whether any particular fact produce a certificate of the minister and church wardens as to was or was not material. 8 Barn. f. C. 586 : 4 Bing. 60: his character, and their belief of the loss sustained, and the 5 Bing. 503. If a policy is void at the time of the insured's truth of what he advances. Park, 448. death, no payment by any person after his decease can revive If a policy of insurance from fire refer to certain printed it. Thus, where, by the rules of the society, the insured mnight proposals, the proposals will be considered as part of the policy. (if the quarterly premium was left unpaid for fifteen days), \ 6 T. R. 710. within six months, on certain terms, revive the policy, and the Insurance “ against all the damages which the plaintiffs insured died five days after a quarterly payment became due, should suffer by fire, on stock and utensils in their regular it was held, that his executor could not, by paying the arrear, built sugar house," does not extend to damage done to the revive the policy. 12 East, 183: 3 Camp. 134.
sugar by the heat of the usual fires employed in refining, being We have already seen (ante, III. 8.) that when the risk is accumulated by the mismanagement of plaintiffs, who iradentire, and is once begun, there shall be no apportionment of vertently kept the top of their chimney closed. 6 Taunt. 436. premium : if, therefore, the person whose life was insured, By the proposals of the Phoenix Company it is stipulated, should commit suicide, or be put to death by the hands of that “ persons insured shall give notice of the loss forth with, justice, the next day after the risk commenced, there would be deliver in an account, and procure a certificate of the minister, no return of premium. See Tyrie v. Fletcher, Cowp. 669. church wardens, and some reputable householders of the parish,
A policy of insurance upon a life (effected by the Amicable importing that they know the character, &c. of the assured, Society) did not contain any provision for avoiding the policy and believe that they really sustained the loss, and without in case the insured should suffer by the hands of justice. It fraud :" the procuring of such certificate is a condition precedent was held, that the obligation to pay did not determine, merely to the right of the assured to recover on the policy; and it is because the conduct of the party insured produced the evil; immaterial that the minister, &c. wrongfully refused to sign even though such conduct was against the criminal law of the the certificate. 16. country. To avoid the obligation, the act must be done frau. A certificate of some reputable householder alone is not suffi. dulently for the very purpose of producing the event. 3 Russ. ( cient. Ib.
In these insurances against fire, the loss may be either partial
or total, and some of the offices, if not all, expressly undertake VI. INSURANCE AGAINST FIRE is a contract by which the to allow all reasonable charges attending the removal of insurer undertakes, in consideration of the premium, to in- | goods in cases of fire, and to pay the sufferer's loss, whether demnify the insured against all losses which he may sustain in the goods are destroyed, lost, or damaged, by such removal. his house, or goods, by means of fire, within the time limited | Park, 449. in the policy. Various offices have been instituted for these The insurance companies in general reserve to themselves kinds of insurances: some established by the royal charter, an option of reinstating the premises, or of paying the amount others by deed inrolled, and others which give security on of the insurance money. See 18 Ves. 119. land for the payment of losses. Some are called Contribution In a policy against fire from half-year to half-year, the Societies, in which every person insured becomes a member assured agreed to pay the premium half yearly, “as long as or proprietor participating in profit and loss. Such are the the insurers should agree to accept the same," within fifteen Hand in Hand, and the Westminster Fire Office for the in- 1 days after the expiration of the former half-year, and it was surance of goods and buildings; and the Union Fire Office for also stipulated that no insurance should take place till the prethe insurance of goods. The other companies insure both mium was actually paid ; a loss happened within fifteen days. houses and goods at their own risk. Of these the principal after the end of one half-year, but before the premium of the are the London and Royal Exchange Assurance corporations, next was paid : held, that the insurers were not liable though the Sun, the Phønix, the British ; and there are numbers of the assured tendered the premium before the end of fifteen days, other offices recently established for this branch of insurance. but after the loss. 1 Bos. & Pull. 471.
The rules by which these societies are governed are drawn Soon after this decision the Royal Exchange Assurance Com
Where a trader shipped goods for Cagliari, on board a general | So, whenever a ship, in order to escape a storm, goes out of the ship, represented as sailing with licence and without convoy, direct course, or, when in the due course of the voyage, is and bound for Gibraltar, Cagliari, and Majorca, which had a driven out of it by stress of weather, this is no deviation. And licence to sail without convoy to Gibraltar only, and sailed if a storm drive a ship out of the course of her voyage, and she from Gibraltar without convoy or licence, an officer being do the best she can to get to her port of destination, she is not appointed there to grant licences under certain circumstances, obliged to return to the point from which she was driven. held that an insurance of such goods by the shipper was void. 1 T. R. 22: Park, c. 17. 6 Taunton, 544.
A deviation may also be justified, if done to avoid an enemy, If the assured, after subscription by the underwriter, strike or seek for convoy, because it is in truth no deviation to go out with a pen the time of warranty of sailing, which stood in out of the course of a voyage, in order to avoid a danger, or the body of the policy, and inserts in a memorandum in the to obtain a protection against it; if in all cases the master of a margin a different time for sailing, which the underwriter does ship act fairly and bona fide according to the best of his judgnot sign, he destroys the policy, and the underwriter is dis- ment. 2 Salk. 445: 2 Stra. 1265 : Holt. 185: Marsh, 265: charged from the original contract. Fairlie v. Christie, Park, c. 17. 7 Taunton, 412.
Thus, where the policy contains no warranty against seizure In all these cases of fraud, wherever there has been an alle- in port, if the ship to avoid such seizure runs to sea before she gation of falsehood, a concealment of circumstances, or a mis- is properly loaded, and is in consequence obliged to go to a representation, it is immaterial whether it be the act of the port out of the direct course of the voyage insured, the underperson himself who is interested, or of his agent; for in either writers are liable for a subsequent loss. 4 Camp. 249. Otherplace the contract is founded in deception, and the policy is wise, where there is a warranty against such seizure. 4 Camp. consequently void. And this rule prevails, even though the 246. act cannot be at all traced to the owner of the property insured. If part of the crew, who are necessary to the navigation of Stewart v. Dunlop, in Dom. Proc. 1785: 1 T. R. 12: Park, the ship, be arrested by a press-gang, and the captain go ashore
to procure their release, a delay so occasioned arises ex justa A policy will not, however, be set aside on the ground of causâ, and the underwriters will not be discharged by it; fraud unless it be fully and satisfactorily proved ; and the aliter, if they are unnecessary. 4 Camp. 62. burden of proof lies on the person wishing to take advantage A deviation may be justified, if done to succour a ship in of the fraud. At the same time, positive and direct proof of distress, per Lawrence, J. 6 East, 54. fraud is not to be expected, and from the nature of the thing In all cases of deviation, it may be laid down as a general circumstantial evidence is all that can be given. Park, 214. rule, that, wherever a ship does that which is for the general As to the return of premium in cases of fraud, see post, 8. benefit of all parties concerned, the act is as much within the
2. It being necessary, except in some special cases, to insert spirit of the policy as if it had been expressed: and, in order to the name of the ship on which the risk is to be run in the say whether a deviation be justifiable or not, it will be proper policy, it follows, as an implied condition, that the insured to attend to the motives, end, and consequence of the act as the shall neither substitute another ship for that mentioned in the true ground of judgment. Comp. 601. But to avoid as much policy before the voyage commences, in which case there would as possible any additional risk, in case of a deviation from nebe no contract at all; nor, during the voyage, remove the pro- cessity, the ship must pursue such voyage of necessity in the perty insured from one ship to another without consent of the direct course, and in the shortest time possible, as nothing more insurer, or without an unavoidable necessity, under which must be done than the necessity requires, otherwise the underevery thing possible must be done for the benefit of all con- writers will be discharged. Dougl. (271.) 284. cerned ; if he do, the implied condition is broken, and he If the voyage described in the policy be from “ A. to B. cannot, in case of loss, recover against the underwriter. Park, and C.” and the ship go to C. before B. (though C. be nearer c. 16. See 2 Stra. 1248 : 1 Burr. 351:1 Term Rep. 611. note. to A. than B. is), it is a deviation, if it be not the regular and
3. Deviation is understood to mean a voluntary departure, settled course of the voyage to go to C. first. 6 T. R. 531. without necessity or any reasonable cause, from the regular and If a ship mean to go to more than one of the places named usual course of the specific voyage insured. Whenever this in a policy, she must visit them in the order in which they happens, the voyage is determined; and the insurers are dis- stand in such policy. 3 East, 572. And in the same succescharged from any responsibility; because the ship goes upon a sion in which they occur in the course of voyage insured ; different voyage from that against which the insurer under- 3 Taunt. 16; and for purposes only connected with the voyage. took to indemnify. And it is not material in this case whether 4 Barn. f A. 72: 15 East, 278. the loss be or be not an actual consequence of the deviation: A ship was permitted by licence to proceed froin D. to L., for the insurers are in no case answerable for a subsequent and thence to B., there to lade, to the destination of the port loss, in whatever place it happen, or to whatever cause it may from which she departed. The vessel proceeded on her voyage be attributed. Neither does it make any difference whether from D. to L. and from L. to B.: held, that she was not prothe insured was or was not consenting to the deviation. Park, tected by the licence on a further voyage, from B. to L. c. 17. p. 294: and see Elliot v. Wilson, Bro. P. C. If there- 1 B. f A. 142. fore the master of a vessel put into a port not usual, or stay an A deviation of a vessel from the voyage insured through unusual time, it is a deviation. And if the deviation be but the ignorance of the captain, or from any other motive not for a single night, or for an hour, it is fatal. But if a merchant fraudulent, though it avoids the policy, does not constitute an ship carry letters of marque she may chase an enemy, though act of barratry. 7 T. R. 505. she may not cruize, without being deemed guilty of a devia- Policy on goods, on board a particular ship, from A. to B. tion. Park, 295—299.
against sea risk and fire only:" in the course of the voyage Wherever the deviation is occasioned by absolute necessity, from A. to B. the ship was carried out of the course of the as where the crew force the captain to deviate, the under- voyage insured, and while so proceeding, the goods insured writers continue liable. 2 Stra. 1264. And the general justi- sustained sea damage: held, the underwriters were liable for fications for a deviation seem to be these : to repair the vessel, this loss. i Bos. f• Pull. N. R. 181. to avoid an impending storm, to escape from an enemy, or to A policy of insurance on a ship on a certain commercial seek for convoy.
voyage, with or without letters of marque, giving leave to the If therefore a ship is decayed, or hurt by a storm, and goes assured to chase, capture, and man prizes, however it may to the nearest port to refit, it is no deviation, because it is for warrant him in weighing anchor, while waiting at a place in the general interest of all concerned. 1 Atk. 545: Park, c. 17. I the course of the commercial voyage insured, for the purpose of chasing the enemy, who had before anchored at the same place was in the same condition as if it did not exist; and the docin sight of him, and was then endeavouring to escape, will trine is the same in insurance upon goods, as when it is upon not warrant him after the capture, and in the course of the the ship itself. See Park, c. 11. further prosecution of the voyage, in shortening sail and laying. It is a clear and established principle, that if a ship is seato in order to let the prize keep up with him for the purpose worthy at the commencement of the risk, though she becomes of protecting her as a convoy into port in order to have her otherwise in one hour afterwards, the warranty is complied condemned, though such port were within the voyage insured. with, and the underwriter is liable. i Dow. 344. 6 East, 45.
As an assured impliedly warrants the ship insured to be seaThe words in a policy of insurance.“ with or without letter worthy; whatever forms an ingredient in sea-worthiness is of marque,” do not appear to authorize direct cruising out of not necessary to be disclosed by the assured to the underthe course of the voyage insured in search of prize. 16. writer in the first instance, unless information upon the subject 202.
be particularly called for, and then the assured must disclose The assured upon a trading voyage taking out a letter of truly what he knows in the respect required: therefore, where marque (but without a certificate, which is necessary to its the assured of a ship had received a letter from the captain, validity) unknown to the underwriters, solely with a view to informing him that he had been obliged to have a survey on encourage seamen to enter, and without any intention of using the ship at Trinidad on account of her bad character, but the it for the purpose of cruising, though the vessel was armed for survey, which accompanied the letter, gave the ship a good chaself-defence, is not such an alteration of circumstances as will racter; held, that the nondisclosure of such letter an survey avoid the policy. 6 T. R. 379.
to the underwriters did not vacate the policy; though it apAnd if a captain, contrary to the instructions of his owner, peared in evidence that such circumstance, if known, would cruise for and take a prize, and the vessel be afterwards lost in have enhanced the premium of insurance. Hayward and consequence of it, it is an act of barratry, although the another. v. Rodgers, 4 East, 590. captain libelled the prize for the benefit of the owner as well A ship insured at and from a port, sailed on her voyage in as himself. Ib.
an unseaworthy state, in consequence of having a greater It is a deviation if the master leaves a port for a particular cargo than she could safely carry. The defect was dis. purpose by the command of the captain of a king's ship, lying covered before any loss occurred, and part of the cargo was there without any remonstrance. 2 Campb. 350.
discharged; but a loss subsequently accrued, in no degree atA deviation merely intended, but never carried into effect, tributable to her having been overladen in the early part of does not discharge the insurers; and whatever loss happens her voyage: held, that the underwriters were liable for such before actual deviation, or the dividing point of the voyage, loss. 3 B. f. 4. 320. falls upon the underwriters. 2 Stra. 1249: Dougl. (346.) The assured cannot recover upon a policy of assurance unless 361. See also 2 Ld. Raym. 840: 2 Salk. 444. But if it can they equip the ship with every thing necessary in her navigabe shown that the parties never intended to sail upon the tion during the voyage, and therefore they cannot recover if voyage insured, if all the ship's papers be made out from a dif- there be no pilot on board. 7 T. & R. 160. ferent place from that described in the policy, the insurer is But if a captain is a person of competent skill, and on discharged, though the loss should happen before the dividing arriving off a port, use proper diligence to procure a pilot point of the two voyages. Dougl. 16. As an intention to without success, and then enter without one, and the ship is deviate does not vacate the policy, it follows that whatever lost, the assurers are liable, though the captain might act damage may be sustained before an actual deviation will fall wrong in entering, for he exercised his discretion bona fide. upon the underwriters. 2 Salk. 444: 1 Maule 8, S. 46: 2 Barn. f; Adol. 380. 7 Barn. d. C. 14. And, in all cases, deviation or not is a As to what is required of masters with respect to pilots in question of fact to be decided, subject to the above rules, entering ports and rivers in this country, see 6 G. 4. c. 125. according to the circumstances of the case. Dougl. 781. Where a vessel engaged in the southern whale and seal As to changing the voyage by a memorandum on the policy, fishery, and with liberty to chase and capture prizes, is insured see Laird v. Robertson, 4 Bro. P. C. 488.
in August, 1807, with a retrospect to August, 1806, although It has already been mentioned, that if a master remain an at the time of her insurance she was not competent to pursue unusual time at a port it is a deviation; and many cases have all the purposes of her voyage, the crew being reduced by been decided in which it has been held that the insurers death and casualties, if she had a competent force to pursue were discharged by an unreasonable delay. See 4 Esp. 25: any part of her adventure, and could be safely navigated i Camp. 305: 14 East, 475: 8 Bing. 79. 81. n. 108. 124. home, she is to be deemed seaworthy. Holt, 50: and see
4. Évery ship insured must, by a tacit and implied warranty 2 B. f. 4. 73. at the time of the insurance, be able to perform the voyage, Where a vessel's best bower-anchor and the cable of a small unless some external accident should happen ; and if she have bower-anchor are defective; this deficiency in her ground tacka latent defect, wholly unknown to the parties, that will ling will prevent her from being sea-worthy. 3 Don. 57.
5. In wager-policies, or policies upon interest or no interest, though the insured ought to know whether she was sea- the performance of the voyage in a reasonable time and worthy or not at the time she set out upon her voyage, yet manner, and not the bare existence of the ship or cargo, is he cannot tell how long she will remain so; and if it can be the object of insurance. But such policies being contradicshown that the decay, to which the loss is attributable, did tory to the real nature of an insurance, which is a contract of not commence till a period subsequent to the insurance, the indemnity, seem to have been originally bad, because insurances underwriter will be liable though she should even be lost a were invented for the benefit of trade, and not that persons unfew days after her departure. Park, c. 11: 5 Burr. 2804: concerned or uninterested should profit by them. Indeed, Dougl. (708.) 735.
these wager-policies were not introduced into England till after The whole doctrine of sea-worthiness was settled in the case the Revolution, and the courts of law looked upon them with a of the Mills frigate, where the insurance was upon a ship jealous eye, while the courts of equity considered them as abwhich had a latent defect totally unknown to the parties; and solutely void. Park, c. 14. See io Mod. 77: Com. Rep. 360: it was held, that the insurers were not liable, because the ship 2 Vern. 269. 716. was not seaworthy; and that however innocent or unfortu- The great distinction between interest and wager-policies nate the insured might be, yet if the ship be not seaworthy at was, that in the former the insured recovered for the loss the time of insuring, there is no contract at all between the actually sustained, whether it was a total or partial loss; in the parties ; because the very foundation of the contract, the ship, latter he never could recover but for a total loss. 2 Burr, 683.
vacate the contract, and the insurers are discharged. But..
INSURANCE, III. At length it was found that the indulgence given to these fic- to be the circumstance of the assured having a pecuniary titious, or, to speak more plainly, gambling policies, had in interest in the subject. creased to such an alarming degree, as to threaten the very Great discussion respecting the nature of insurable interest annihilation of that security, which it was the original intent took place in respect of insurances effected by the commisof insurances to introduce. It was, therefore, enacted by sioners for disposing of Dutch ships seized, and detained by stat, 19 G. 2. c. 37. that insurances made on ships or goods, the crown; these commissioners were appointed by stat. 35 G. 3. interest or no interest, or without further proof of interest C. 80. § 21; and it was determined that the commissioners had than the policy, or by way of gaming or wagering, or without such an interest as entitled them to insure. See 8 T. R. benefit of salvage to the insurer, should be null and void. K. B. 13. and more fully Lucena v. Crawford (in error), The statute, however, contains an exception for insurances on 3 Bos. 4- Pull. 75, fc.: Dom. Proc. 2 New Rep. 313. In this private ships of war fitted out solely to cruise against his latter case it was admitted that a mere expectation without Majesty's enemies, (see 4 Bro. P. C. 439); and also provides interest cannot be the subject of insurance. that any merchandizes or effects from any ports or places in Upon a joint capture by the army and navy, the officers and Europe or America, in the possession of the crowns of Spain or crew of the ships, before condemnation, have an insurable inPortugal, may be insured in such way or manner, as if the terest, by virtue of the prize-act, which usually passes at the statute had not been made. And it has been decided, that the commencement of a war. Park, c. 14. cites Le Cras v. statute does not extend to insurances of foreign property, on Hughes. See also 11 East, 619. foreign ships. Dougl. (301.) 315.
The profits of a cargo, employed in trade on the coast of The above provision of the statute relative to insurances Africa, are an insurable interest. 2 East, 544. So is an infrom any ports or places in Europe or America, in the posses- surance on imaginary profit. Hendrickson v. Margelson, sion of Spain or Portugal, is founded on the regulations of B. R. 1776. cited in the above case, 2 N. R. 314. those states to prohibit illicit trade; it is loosely worded, and In Eyre v. Glover, 16 East, 318. the insurance was on proadmits of some latitude of interpretation, perhaps more than fits, without farther description, and held good. A mariner the legislature meant to allow. See Park, c. 14. ad fin. cannot insure his wages or commissions. 7 T. R. K. B. 157. - A valued policy is not a wager-policy ; it originates from But the master may insure his commission, privileges, and, as the circumstances of its being sometimes troublesome to the it seems, his wages. 1 New Rep. C. P. 206. trader to prove the value of his interest, or to ascertain the A ship-owner may effect an insurance on freight on his own quantity of his loss: he therefore gives the insurer a higher goods by his own ship, and recover from the underwriter, in premium to agree to estimate his interest at a sum certain. In case of loss, the benefit he would have derived from carrying this case the plaintiff must prove some interest, although he them on the voyage insured. The risk in freight does not need not prove the value of his interest. But if a valued attach until goods are actually shipped, or there is a binding policy were used merely as a cover to a wager in order to evade contract for shipping them. 1 B. d. Ad. 45: S. C. 1 Ll. f. W. the statute, it would be void. 2 Burr. 1167: 4 Burr. 1966: 257. Park, c. 14. The valuation does not raise a mere presumption With respect to the degree and kind of interest which are which may be repelled by evidence, but the insurers are liable requisite when the subject is in its nature insurable, see to the full amount, in a case, not being actually a colourable 1 T. R. 745: 1 Bos. f. Pull
. 315, 316. wager, although they may prove an over valuation.
The master of a ship drew a bill on his owners for supplies Å policy dispensing with all proof of interest is within the for the ship, and wrote on the bill “ if this be not honoured act 19 G. 2. c. 37. § 1. forbidding assurances, “ interest or no the holder will insure the amount, and place the premium to interest, or without farther proof of interest than the policy," the drawer's account." The bill being dishonoured, the and void. If the words of the policy do not dispense with holder insured the ship for three months, and averred inthe proof of interest, but merely fix the amount, it is a valued terest in the bill which was to be sufficient proof of interest. policy, and good. Where the policy, after stating that the The ship was lost after the three months : held, that the goods should be valued at so much, contained the words, "that holder of the bill was authorised to insure for his own benefit, the policy be deemed sufficient proof of interest," it was held and was warranted in insuring for three months, and that he in effect an insurance, “interest or no interest.” 4 Bingh. 567. might recover the premium again of the drawer. 6 Taunton,
In 11 East, 428. an armed ship having taken into Lisbon a 234. Danish vessel, after a proclamation requiring such vessel to be A person who has several interests in a cargo, viz. as partner brought into port, and having taken a freight to England, with in 7-16ths, as a cognisee of the whole, and as having a lien which the vessel captured sailed on the day of issuing letters on the whole for advances, may protect them all by one insurof marque, it was held that an insurance made on behalf of ance, without expressing in the policy the number or nature of the captors could not be sustained.
his interests. 6 Taunton, 14. All contracts of insurance made by persons having no in- Where it is stipulated in a charter-party that in case the ship terest in the event about which they insure, or without refer- is lost during the voyage, the charterer shall pay the owner a ence to any property on board, are merely wagers, and as such, sum of money, which is estimated as the value of the ship, void. Cowp. 583. And wherever the court can see upon the the owner has still an insurable interest in the voyage. face of the policy that it is merely a contract of gaming, where 3 Camp. 93. indemnity is not the object in view, they are bound to declare The property of a neutral may be insured on a voyage to a such policy void. Dougl. (451.) 468. See 4 Bro. P. C. 476. neutral or friendly port, although the neutral owner is himself
It is observed in Miller's Treatise on Insurance, that the resident in a place occupied by the enemy. i Camp. 75; and object of insurance, strictly speaking, is, not to make positive see 9 East, 283. gain, but to avoid actual damage and harm from the event It is no defence under the general issue in an action on a provided against. The assured must not only have an interest policy of insurance that the persons interested, who were in the subject, but he must be seeking indemnification in case neutrals when the policy was effected and the loss happened, that subject should be lost or impaired: but although an had become alien enemies before action brought. 3 Camp. 152. insurance, actually speaking, seems to relate to positive loss As to insuring an enemy's ship see the following division. merely in opposition to expected profit, yet this distinction is 6. Whenever an insurance is made on a voyage expressly not generally attended to. The failure of an advantage, of prohibited by the common statute, or maritime law of this which we have formed a strong expectation, does not appear country, the policy is void. And in such a case it is immavery different from actual damage sustained ; between a wager terial whether the underwriter did or did not know that the therefore, and a legal insurance, the material difference seems voyage was illegal ; for the court cannot substantiate a cons VOL. I.