Of changing the ship. In insurances on ship, the destruction of the original ship gives the as If the policy be upon ship, it is clear that the liability of the underwriters will be at an end directly the specific subject of insurance has been wholly lost, as by foundering at sea; or wholly destroyed as a ship, either by shipwreck or irreparable damage. In insurances on ship, therefore, the rule is, that right to claim a the total loss, whether actual or constructive of the original ship, will give the assured on ship a right to claim the full amount of the sum insured, either with or without notice of abandonment, as the case may be. (x) sured on ship a total loss. It is only on that any ques- It is only, therefore, in policies upon other subjects of insurance, as, for instance, goods, freight, profits, &c., that any question as to the effect of changing the ship can possibly arise. With regard to these it may be laid down That, if either before the commencement of the voyage or If at any time, during the course of it, the ship named in the policy be changed without necessity, or without the consent of the underwriters, they will be discharged from their liability. (y) after the commencement of the risk (whe ther before or after sailing), the ship named in the policy be consent of un- that named in So invariable is this rule, that it holds good even though the substituted ship may be of larger dimensions or greater strength than that originally named in the policy (z); for, by the fact that a given ship is named in the instrument, the underwriter has a right to say that he had some peculiar reasons for insuring a risk on that very ship, which would not apply to any other. On the same ground, if without consent or necessity the cargo is either shifted from the ship named in the policy to one as good or better, or is originally loaded on board the latter instead of on board the ship named, and both ships perish on the voyage, yet the underwriter shall be discharged from all liability, for the policy never attached upon the goods loaded on board the substituted ship. (a) vol. i. pp. 419-425. ed. 1827), who (x) See post, Part III. Chap. III. (y) Emerigon, chap. xii. sect. 16. vol. i. p. 419. ed. 1827. (2) Emerigon, ibid. P. 420. (a) Pothier, No. 68. p. 111. ed. 1810, par Estrangin, Emerigon, ibid. p. 421. the ship. Thus, if the underwriter has agreed to insure three several of changing parcels of goods, each of the value of 1000l., one on board the St. Joseph, another on board the Triton, and a third on board the Syren, making together 30007., but the merchant afterwards lands these parcels all on board the St. Joseph, the underwriter will only be liable upon the policy effected on goods on board the St. Joseph, and that only to the extent of 1000, the sum insured thereon; and as to the remaining 20007 he will be discharged, although all the three ships may have equally perished in the course of the voyage. (b) If, however, the underwriters consent to the change of ship, or if in the course of the voyage the ship becomes so disabled as to be incapable, by any means at the master's disposal, of being repaired at all, so as to take on the cargo, the master, as agent for all concerned, may procure another ship, in which to forward the cargo to its port of destination; and in such case the change of ship does not discharge the underwriters on goods, freight, or profits, from their liability for any loss on the subjects they have insured, which may occur subsequently to such change of ship. Many cases will occur in the later part of this work, under the head of Constructive Total Loss of Goods and Freight, which will serve to illustrate this position: we shall also have occasion, in considering the duties of the master, to discuss those cases of necessity which give him the right, if they do not impose upon him the duty, of forwarding the goods in another ship. If, however, the consent, or if the ship, in the underwriters course of the voyage, be comes so dis abled as to be incapable, by the master's any means at disposal, of being repaired, so as to take ou the cargo, the procure a sub. Staples. It was a position first established in this country, by the case Plantamour ♥. of Plantamour v. Staples (e), and has ever since been recognised 1 T. Rep. 11. here as an undoubted doctrine of insurance law, that if the original ship be disabled, and the master acting with a wise discretion, as the agent both of the merchant and the shipowners, forwards the cargo in another ship, such necessary (b) Pothier, Traité d'Assurance, No. 68. p. 111. ed. 1812. Code de Commerce, art. 361. Boulay-Paty, Cours de droit Mar., tom. iv. sect. 21. p. 132. ed. 1834. (c) Plantamour v. Staples, 1 T. Rep. 611, note. S. C. 3 Dougl. 1. Of changing the ship. and justifiable change of ship will not discharge the underwriter on goods, from liability for any loss which may take place on the goods subsequently to such transhipment. (d) (d) See as to this rule Shipton v. Thornton, 9 Ad. & Ell. 314. The dictum of C. J. Lee in the Nisi Prius case of Dick v. Barrell (2 Strange, 1248, and Marshall on Ins. 165.), which was once regarded as contra, must now be considered as overruled. CHAP. VIII. OF THE MASTER. It is not intended, in this place, to enter at any length into Of the master. those general duties and obligations of the master, in regard to the conduct of the ship, which more properly form part of a professed treatise on shipping: nothing more is proposed than briefly to notice such points only, in respect to the master, as have a bearing more or less direct on the subject of marine insurance; and to this end we will consider -- 1. The naming of the master in the policy, and subsequently changing him. 2. His power of hypothecating the whole, or selling part of the cargo for the sake of the ship. 3. His power, in case the first ship is disabled, of sending on the cargo in another. 4. His power in certain cases to sell the ship or the whole the cargo. 5. The relation in which he stands to the assured and to the underwriter in case of abandonment. SECT. I. Of naming the Master in the Policy, and of subsequently changing him. 66 § 80. After the blank left in our common printed forms of policy for the name of the master, come the following words: or whosoever else shall go for master in the said ship, or by whatsoever other name or names the said ship, or the master thereof, is or shall be named or called." From this clause it is abundantly evident, that it is no implied condition in our English policies either that the master should be correctly named, or that the same master should continue on board throughout the voyage. N 3 Of naming the master in the policy, and of subsequently changing him. Before the commencement of the voyage another master (of the same nation) may be substi tuted for him named in the policy, even without the Of naming the master in the subsequently changing him. express consent of the underwriters. The law is the same in France. (a) Emerigon, however, policy, and of limits the generality of the words, " or whosoever else shall go for master" (ou autre pour lui), to this extent, that they shall not apply to a master who is of any other nation, especially in time of war; and he cites a case to show the manner in which, if understood without this limitation, this clause might stituted master increase the risk of the underwriters, by substituting a belligerent as master instead of a neutral. (b) This limitation seems very reasonable, and, should the case ever arise, would no doubt be ratified in our courts. But the sub should be of the same nation, to avoid belligerent risks. And the assured will not be justified in making this change, except Subject to this limitation, there seems no doubt that another master may be substituted to command the ship on which the insurance is effected, instead of him who is named in the policy, without the consent of the underwriters, and before the commencement of the voyage. As, however, it is reasonable to suppose that the underwriters can by no means be entirely indifferent as to the master by whom the ship is commanded, and upon whose skill or ignorance the nature of the risk they assume so feet good faith, materially depends, it will be incumbent on the assured only to make this change in perfect good faith, and to provide a substitute of competent skill. (c) he act in per and appoint a substitute of competent skill. A fraudulent change of mas ter would discharge the underwriters. If in the course of the voyage, from the death or disability of the original master, another be appointed, this makes no difference in the liability of the assured. If the substitution can be shown to have been effected for any fraudulent purpose, it will, of course, vitiate the policy. (d) What has preceded relates to a substitution of another master for him named in the policy before the commencement of the voyage; if, in the course of it, from death, disability, or other necessary cause, the master originally named in the policy be rendered incapable of acting, or if he abandon his command, the substitution of another captain in such case of necessity, will, of course, make no difference to the policy. (e) (a) Emerigon, chap. vii. sect. 1, 2, 3. Comp., 12 Johnson's Rep. 138. Kent's vol. i. pp. 184-190. ed. 1827. (b) Ibid. sect. 1. p. 187. BoulayPaty, in his Comment. Ibid. p. 188., agrees with Emerigon in this construction of the clause. (c) See † Walden v. Firemen's Ins. Comm. 257. ed. 1844. (d) Boulay-Paty on Emerigon, chap. vii. sect. 2. p. 189. ed. 1827. (e) Emerigon, chap. vii. sect. S. p. 189, 190. ed. 1827. |