Imágenes de páginas
PDF
EPUB

the assured in

the policy.
Construction of
the 28 G. 3.
c. 56.

In order that the ratification

to an authority,

it must be given with knowledge.

Description of do any act to adopt the policy till nearly two years after it was effected, when, long after a loss had occurred, he wrote to Hagedorn to the effect that he hoped he had settled the loss with the underwriters on the policy in question:—such adoption was held by Lord Ellenborough and the rest of the should amount court to be equivalent to a previous authority to insure. (o) Of course, as no act of one man can be ratified by another, unless that other is cognizant of what has previously been done, so the party for whom the insurance is intended to be made cannot, by any after authority to insure, be considered to adopt the previous insurance, unless at the time of giving such authority he knew as a fact that the prior insurance had been made. This, indeed, is so plain on principle, that it requires no authority to enforce it, but it is all that was really decided in the case of Bell v. Janson. (p)

Case of Bell v. Janson, 1

In this case, in order to prove that the broker effecting the Maule & Sel. policy was the person, as averred in the declaration, "who

202.

received the order for and effected the insurance," a letter was produced, directed to him from his principal, who resided abroad, ordering an insurance to be made upon the same property on which he had actually effected the policy. On its appearing, however, that this letter had not been received by the broker until three days after he had procured the policy to be made, and also that at the time of writing it the foreign principal was not aware that any such policy had in fact been made, Lord Ellenborough held this proof insufficient to support the averment, because, even admitting a subsequent ratification or adoption to have the same effect as an original authority, yet a letter thus written in ignorance of what had actually been done, could not possibly be considered as amounting to such a ratification. (q)

It may, therefore, be laid down as a well-established rule,

(0) Hagedorn v. Oliverson, 2 Maule & Sel. 479., decided the year after Bell v. Janson. See also Archangel v. Thompson, 2 Camp. 620., also before Lord Ellenborough at Nisi Prius.

(p) See that case, 1 Maule & Sel. 202.

(2) Bell v. Janson, 1 Maule & Sel.

202. N. B. This case was also in a great measure decided upon the ground that the declaration contained an express averment that the parties effecting the policy were persons who had received the order to insure.

that where a policy has been made, without any previous instruction or authority, by a broker in this country for his principal abroad, its adoption or ratification by such principal, after the fact of its having been so effected has been made known, is equivalent to a previous authority to effect it, and constitutes the party by whom the policy has been made

66

a person receiving the order to insure," within the meaning of the statute now under consideration. (r)

[blocks in formation]

the act of 1789 is that no poli

cies can be sub

scribed in

Such, then, having been the wise latitude of the interpre- The result of tation adopted by the courts, the result of the legislation on this subject has been merely to render it necessary that the name of the person immediately engaged in effecting the policy (i. e. in almost all cases of the insurance broker) should be inserted therein; and the act of parliament, as construed by the judges, has been reduced to a mere prohibition against policies in blank.

(r) For a curious illustration of the general principle, see Barlow v. Leckie, 4 J. B. Moore, 8.

blank, but that the name of the least must ap

policy broker at

pear on the face

of the instru

ment.

CHAP. VII.

OF THE SHIP.

Of the ship.

Of the name of the ship in the policy.

Reason why

the ship must be named in the policy.

An error in the name is unimportant if, in fact, the underwriter has not thereby been misled.

THE ship in which the voyage insured is to be performed has so important a bearing on the rights and liabilities of the parties to a policy of insurance, that it will be better to consider it separately than under the general head of subjects of marine insurance.

We will consider,

1. The naming of the ship in the policy.

2. Insurance on goods "in ship or ships."

3. Of changing the ship in the course of the voyage.

SECT. I. Of the Name of the Ship in the Policy.

§ 76. We have already seen that the name of the ship in which the voyage is to be performed, must be accurately specified in every policy, on the ground that the underwriter has a right to be informed of every thing material to the risk; the nature of which would obviously be very different upon ships of different degrees of seaworthiness.

It has also appeared that, although the name must generally be inserted with accuracy, yet, as it is only required to be so inserted for the purpose of identifying the ship, an error in the name will be unimportant, if it can be clearly shown that the underwriters were not misled by it, but that they really intended to insure a risk to be carried on in the very ship on which the loss occurred, in respect of which the assured claim to recover, the principle being that nil facit error nominis cum de corpore constat. (a) Accordingly, in our

(a) See Emerigon, chap. vi. sect. 11. aliis circumstanciis constat de navis vol. i. p. 160. : "Error nominis ali- identitate." cujus navis non attenditur, quando ex

common policies, after the names of the ship and master, come the words, "or by whatsoever other name or names the same ship, or the master thereof, is or shall be named or called."

The following cases show the degree of accuracy practically required on this subject. An insurance was effected on ship, as on a ship "called the Leopard:" it appeared that the name of the ship was in fact the Leonard, and that she had never been called the Leopard; it being proved, however, that the ship lost was the same that the underwriters intended to insure, the Court held, that by virtue of the above clause in the policy, the variance in the name had no effect on the validity of the insurance. (b) So where an American ship called The President was described in the policy as " the good ship called The American ship President;"" but it clearly appeared that the error had arisen from the blunder of the broker's clerk, and that the ship lost was really that on which the underwriters meant to insure, the error of name was held immaterial. (c) And the decision of the Court was the same in another case, where a ship really called by the Spanish name of Las Tras Hermanas, was described in the policy by an English translation of the name, as "The Three Sisters." (d)

Vessels in mercantile usage are known by different technical designations, as ships, barks, brigs, sloops, schooners, &c.; and if the underwriter were not in fact acquainted with the vessel on which the insurance was intended to be effected, he might be misled by a description of the vessel, which was false in this respect.

Of the name of the ship in the policy.

Cases showing accuracy practically required

the degree of

in this respect.

A misdescriplicy of the kind of vessel might be important, if the underwriter were thereby misled; and

tion in the po

if fraudulent, it would avoid

Thus, although the word ship, in its general acceptation, the policy. comprehends vessels of all descriptions, yet in its technical

sense, and amongst nautical men, it is used in contradistinc

[blocks in formation]

Of the name of tion to smaller species of craft, and means a vessel with three masts, and generally of larger dimensions.

the ship in the policy.

A ship intended to be used

as a letter of

The underwriter, therefore, who was ignorant of the real nature of the particular vessel on which the policy was sought to be effected, might be induced to insure a brig, sloop, or other smaller craft, if described in the policy as a ship, at a lower rate of premium than he might have asked had its species been truly described; and if the party insuring purposely misdescribed the vessel with the fraudulent intent of deceiving the underwriter, in such case, but in no other, the policy might be held void for such misdescription. (e) If the misdescription be not of such a nature as to diminish the rate of premium it is entirely unimportant, and, generally speaking, the general term ship is quite a sufficient description, unless it be calculated to mislead the underwriter in this respect. (f)

As the amount of hazard incurred on any ship is very greatly increased by her being employed as a privateer or marque or pri- letter of marque, Emerigon considers, upon the principle vateer ought to be so described above laid down, that a ship intended to be so employed or represented. ought to be described accordingly in the policy by which she

is insured (g): but it is quite certain that if it were verbally represented to the underwriter that such was her destination, this would be sufficient in this country, though she were not so described in the policy.

Insurance on goods "on

board ship or ships."

Reasons for

the practice of insuring "by ship or ships."

board Ship or Ships."

SECT. II. Insurance on Goods" on board Ship

§ 77. Cases will frequently occur in the widely extended operations of modern commerce, in which it may be utterly impossible, or would be highly injurious, to compel the party insuring to insert in the policy the name of the ship.

A merchant who has ordered a consignment of goods from distant port, may be anxious to effect an immediate very

some

[blocks in formation]
« AnteriorContinuar »