and duties of the master in cases of abandonment. Of the powers property, respecting which extraordinary measures must be taken, unless it is to be left to total loss and destruction, his acts ought to be binding upon those (whether the assured or the underwriters, as the case may be) of whom the extraordinary circumstances constitute him the involuntary agent. (e) (e) Phillips on Ins., vol. ii. p. 346., and see the whole subject considered at large, part iii. on Total Loss and Abandonment. CHAP. IX. OF THE SUBJECTS OF MARINE INSURANCE, OR WHAT GENERALLY speaking, every thing which is exposed to risk by the perils of the seas may be made the subject of a contract of marine insurance, unless its insurance is prohibited either by the general law maritime, the laws of the land, or the law of nations. We will consider-1st. What may be insured. 2dly. What may not be insured. Under the first head we will confine our attention to the insurability of 1. Freight. 2. Profits and commissions. 3. Bottomry and respondentia. Under the second head we shall limit ourselves to the consideration of those things of which the insurance is unlawful from their own nature, as — 1. Seamen's wages. 2. Slaves: leaving to another part of the work the consideration of those things, the insurance of which is unlawful, owing to the prohibited nature of the traffic, or voyage for, or, on which they are insured. The reason for this arrangement is that, as the prohibition of insurance in these latter cases arises not from any thing in the nature of the things themselves considered as subjects of insurance, but solely from the illegality of the risk on which they are embarked; it seems more natural to treat of them under the general head of the illegality of the risk, in that division of the work devoted to the discussion of the causes that avoid the insurance. of the subjects surance, or of marine in. what may and may not be insured. Of the subjects of marine insurance, or The subject, then, of insurances on smuggled goods ; — insurances on ship or goods engaged in traffic or on voyages what may and illegal as in contravention of the navigation acts, the convoy may not be insured. acts, or any other positive laws of the land;-insurances of enemy's property;-insurances on contraband of war ;—insurances on ship or goods engaged in traffic or on voyages otherwise illegal as in contravention of the laws of war, will be considered in the second part of the work, in a chapter treating of the " Illegality of the Risk," as one, amongst other grounds, of avoiding the policy. Having thus seen upon what subjects insurance may be made, we will then consider, 3dly. The description in the policy of the subject of insurance. SECT. I. What may be insured. ART. 1. Freight. § 89. In considering what things may be insured we commence with freight, omitting ships and goods; as to the insurability of which no question can possibly be raised, they having been always and universally regarded as the proper and main subjects of the contract of marine insurance. The word freight in insurance law, and as employed in policies, has a more extensive signification than in the general law of shipping, and is used comprehensively to denote "the benefit derived by the shipowner from the employment of his ship." (a) Freight, strictly speaking, as between the shipowner and the freighter, is the price to be paid by the latter to the former for the carriage of goods in the ship, and is only payable on the arrival of the goods at their port of destination: but in policies of insurance it is equally used to denote that which, strictly speaking, is improperly called freight, viz. the price agreed to be paid by the charterer to the ship (a) Per Lord Tenterden in Flint v. Flemyng, 1 B. & Ad. 48 owner for the hire of his ship under a charter-party, or con- What may be tract of affreightment. (b) Hence the definition of freight, as a subject of marine insurance, that "it is either the remuneration to be paid to the shipowner for the hire of his ship, under an express contract of affreightment for a certain voyage, or the price to be paid to him for the carriage of goods, irrespective of such contract." (c) Nay, it has even a more extensive meaning still, and may be applied to denote the benefit which the shipowner expects to derive from the carriage of his own goods in his own ship, in the shape of their increased value to him at the port of delivery (d); for, as Lord Tenterden observes, "If the term freight, as used in policies of insurance, imports the benefit derived from the employment of the ship, it is the same thing to the shipowner whether he receives that benefit of the use of his ship (1st), by a money payment from one person, who charters the whole ship; or (2d), from various persons who put specific quantities of goods on board; or (3d), from persons who pay him the value of his own goods at the port of delivery, increased by their carriage in his own ship." (e) insured.- Definition of freight as a subject of marine insurance. cludes the It even inbenefit which the shipowner rive from the carriage of his his own ship. expects to de own goods in Expected freight is a lawful subject of "It § 90. In whichever of these three senses the word is used, it is a clearly established principle in this country, that expected freight is a lawful subject of marine insurance. would, indeed, be extraordinary," says Mr. J. Chambre, in the case of Lucena v. Crawfurd, "if freight could not be made the subject of protection by an instrument, which had its origin in commerce, and was introduced for the very purpose of giving security to mercantile transactions; it is a solid substantial interest ascertained by contract, and arising out of labour and capital employed for the purposes of commerce." (f) (b) Per Lord Tenterden in Winter t. Haldimand, 3 B. & Ad. 649. (c) Per Lord Ellenborough in Forbes v. Aspinwall, 13 East, 324, 325. (d) Flint v. Flemyng, 1 B. & Ad. 45. De Vaux v. J'ansen, 5 Bingh. N. C. 519. (e) 1 B. & Ad. 48. (f) 3 Bos. & Pull, 102. insurance in this country. What may be insured.. Freight. The party insuring freight must have an inchoate right to it at the time of effecting the insur ance. The freight which may be which would have been earn ed but for the Indeed, as we shall see more at large hereafter, the party who insures freight must have an inchoate right to it, in order to entitle him so to insure: i. e. he must be in such a position with regard to the expected freight, that nothing could prevent him from ultimately having a perfect right to it but the intervention of the perils insured against. When freight is the price to be paid for the hire of the ship under a charter-party, the shipowner has this inchoate right directly the ship has broken ground on the chartered voyage. When it is the price to be paid for the carriage of goods in the ship, then this inchoate right accrucs directly the goods of the merchant are actually put on board, or are even contracted for and ready to be put on board. In either case the shipowner has put himself in a condition to earn freight, provided either the ship, which he has thus let out to the freighter, or the goods, which he has thus engaged to transport for the merchant, arrive safely at their destination. If, by the perils of the sea, they are prevented from thus insured, is that arriving, the shipowner has no claim to freight from the merchant: that is, he is prevented, in such case, by the perils of the seas, from realising that which, but for the intervention of those perils, he would certainly have earned. It is but fair and reasonable, therefore, that he should have the means of protecting himself, by a policy of marine insurance, against the loss he is thus exposed to. intervention of the perils insured against. In France, expected freight cannot legally be insured. Such are the general principles upon which, in this country, in America, and many of the continental states, the shipowner is allowed to effect an insurance on that freight which he expects to earn, and which he is only prevented from earning by the perils insured against. § 91. The French legislature, proceeding rather on scholastic refinements than mercantile considerations, have prohibited all insurance of expected or future freight (g), on the ground that expected freight is a mere contingency in which (g) "Fret à faire," Ord. de la marchandises à bord," Code de ComMarine, tit. vi. art. 15. "Fret des merce, art. 347. |