nor any contract at all which the assured could have enforced at law for the sale to him of the palm oil, he had no interest whatever in such palm oil at the time of the insurance or the loss, and consequently had no insurable interest in the profits expected to arise from its sale or disposal. (m) "In this case," says Lord Abinger, "the plaintiffs had no present interest, and none can attach on such a contract as this." "At the time of the insurance and the loss," says Mr. Baron Parke, "there was merely an expectation of possession on the part of the plaintiffs, founded on the mere promise of the vendors, but there was an entire absence of interest in the subject matter of the insurance." (n) In this case Mr. Baron Parke also observed, that the shipowners might have insured their profits, because they had the goods; or they might have assigned the oil to a third person, and he might have insured. ART. 3. Insurable Interest of the Lender in Bottomry and Insurable in terest in profits. terest in bottomry and re spondentia. Nature of bot tomry loans. § 108. Where money is lent on bottomry it is understood Insurable inthat, if the ship be lost, the lender loses also his whole money; but if the ship arrive in safety, then he shall receive back his principal, and also the premium or maritime interest agreed upon, however much it may exceed the legal rate of interest; it is plain, therefore, that the lender on bottomry has an insurable interest in the safety of the ship, and accordingly, as we have already seen, money lent on bottomry may be the subject of marine insurance. The insurable interest of the lender in these cases will depend upon the validity of the bottomry bond. In order to give an insurable interest, the money secured by the instru (m) Stockdale v. Dunlop, 6 Mees. & Wels. 224. The issue upon the pleadings was, in terms, whether "the plaintiffs were interested in the profits to arise and be made from the sale and disposal of the said palm oil.” (n) Ibid. 233. See the same principle recognised by Mr. J. Bayley, in the case of Fragano v. Long, 4 B. & Cr. 219. 222. it was an insurance "on goods." The lender on an insurable bottomry has interest in the safety of the ship. In order to interest, the give him such money secured by the bond must be made to depend on the arrival of the ship. Insurable interest in bottomry. Simmonds v. 3 B. & Ad. 50. ment of hypothecation must, upon a fair construction of such instrument, be made to depend on the arrival of the ship. Hence, where in an insurance" on bottomry," it appeared that the words of the instrument were, "I bind myself, my S. C. in error, ship and tackle, &c., to pay the sum borrowed with twelve per cent. bottomry premium, in eight days after my arrival at the port of London ;" . . . " and I do hereby make liable the said vessel, her freight, and cargo, whether she do or do not arrive at the above-mentioned port of London:" it was contended, that, as the master had thus bound himself personally, the payment of the sum borrowed never depended on the arrival of the ship; and, consequently, that the lender had no such interest in the risk of the voyage as to entitle him to insure the money lent. The Court of Common Pleas acceded to this argument, and gave judgment for the defendant (o); but the Court of King's Bench reversed their judgment, being of opinion that the words "my arrival" must be taken to mean, not the personal arrival of the master, but his arrival in the ship; and the clause "whether she do or do not arrive in the port of London," must be construed to mean, not "whether she be lost or not," but "whether she arrives in the port of London or some other port;" they were of opinion, therefore, that, under this instrument, the loss of the ship involved the loss of the money lent, and therefore that the lender might insure his interest therein, and describe it in the policy as "bottomry." The borrower on bottomfy has no insurable The borrower on bottomry and respondentia has no insurable interest in the property pledged, except in as far as interest, except the value of such property exceeds the amount for which it in the surplus is pledged. If pledged to its full value, it is obvious that the borrower can have no insurable interest in its safety; for in such case, if the property arrives, it goes to satisfy the debt; amount of the if lost by the risks within the hypothecation, the borrower is discharged. by which the value of the hypothecated property exceeds the loan. Nature of respondentia loans, and in surable interest thereon. Respondentia is a loan upon the goods, to be repaid to the lender, together with the marine interest, if the goods arrive ; (0) Simmonds v. Hodgson, 6 Bingh. 114. In error, 3 B. & Ad, 50. terest in bot not to be paid if they are lost: the insurable interest, there- Insurable infore, of the lender on respondentia, stands on the same ground tomry. with that of the lender on bottomry, viz. that he has a direct interest in the arrival of the goods. The following provision is contained in the fifth section of the act of the 19 Geo. 2. c. 37. (against Wager Policies), respecting the insurance of bottomry and respondentia in East Indian voyages: - "All sums of money lent on bottomry or respondentia upon ships belonging to his majesty's subjects bound to or from the East Indies, shall be lent only on the ship, or on the merchandise or effects on board, or to be laden on board, and shall be so expressed in the condition of the bond; and the benefit of salvage shall be allowed to the lender, his agents or assigns, who alone shall have a right to make insurance on the money so lent; and the borrower shall recover no more on any insurance than the value of his interest in the ship, or in the goods on board, exclusive of the money so borrowed: and in case it shall appear that the value of his share in the ship, or in the goods on board, doth not amount to the sum borrowed, he shall be responsible to the lender for so much of the money borrowed as he hath not laid out in the ship or goods on board, with interest for the same, together with the insurance and all other charges thereon, in the proportion which the money not laid out shall have to the whole money lent, notwithstanding the ship and goods be totally lost." ART. 4. Insurable Interest of Consignees, Factors, or Agents. § 109. “There are different sorts of consignees : some have a power to sell, manage, and dispose of the property, subject only to the rights of the consignor; others have a mere naked right to take possession" (p); others, again, it may be added, though not intrusted to sell, are yet interested in the property, as having a lien or claim upon it for their advances. (p) Per Lord Eldon in Lucena v. Crawfurd, 2 Bos. & Pull. 324. Provisions of c. 37. s. 5. as the 19 G. 2. to bottomry and respondentia loans, and the insurance thereof, in the East India trade. Insurable insignees, factors, or agents. Different kinds terest of con of consignees. Insurable in terest of con or agents. It is obvious that the rights of these different kinds of signees, factors, consignees to effect an insurance, must vary with the various relations in which they stand to the property and to the consignor. Mere naked consignees not entrusted to sell, nor having a lien for ad insurable in With regard to consignees who have a mere naked right to take possession, without being either intrusted to sell it on commission, or having a lien upon it for their advances, Lord vances, have no Eldon says, "I will not say that they may not insure if they state the interest to be in their principal;" and accordingly, as we have already seen, such persons may effect an insurance own names, and on the property under the terms of the 28 Geo. 3. c. 56., in their own names on account of the consignors, which latter will be bound by the policy so effected if they subsequently adopt it, after notice. (q) terest so as to entitle them to insure in their on their own account, though they may, under certain circum stances, insure on account of the consignor, without orders from him to that effect. But consignees having a lien, or indorsees of the bill of lading, to whom a ge neral balance is due, have an insurable interest to the extent of their claim. But such mere naked consignees have no insurable interest so as to enable them to effect the policy in their own names, and on their own account, and to recover upon it, averring the interest to be in themselves. They have no legal property in the subject matter of the insurance; they are not beneficially interested in it; and they can therefore only effect the insurance on account of those who are so interested and so entitled; and must aver the interest to be in those on whose account the insurance was made. (r) But with regard to the other sorts of consignees above alluded to, i. e. consignees who have a lien or claim on the property in respect of advances; or commission agents, to whom it is entrusted for the purposes of sale; or indorsees of the bill of lading, to whom a general balance is due; there is no doubt that they may effect an insurance on the property in their own names, and on their own account, to its whole value, and recover thereon, averring the interest to be in themselves (at all events to the amount of their lien, claim, or balance), though they have received no previous instruc (q) Woolff v. Horncastle, 1 Bos. & Pull. 316. Mr. J. Lawrence in his celebrated judgment in Lucena v. Crawfurd, 9 (r) See the admirable remarks of Bos. & Pull. N. R. 307. tions from the consignor to insure, nor any subsequent rati- Insurable infication of the insurance. Thus, in the case of Godin v. The London Assurance Company, it was held that, where goods were consigned by a Russian merchant to his factor in this country, to whom a general balance was due from the Russian merchant, such factor had an insurable interest in the goods so consigned, to the extent of his general balance, and might recover thereon, averring the interest to be in himself; and this, though the bill of lading of the goods had been indorsed away to another party. (s) And, in the same case, the party to whom the bill of lading had been indorsed, and to whom the Russian merchant was also indebted for advances to a greater amount than the value of the cargo, was held clearly to have an insurable interest, and to be entitled to recover, under a policy effected on his account, the full value of the insurance. Primâ facie, the indorsement and delivery of a bill of lading vests the whole property and interest in the goods in the indorsee (t); who, from the moment of indorsement, has an insurable interest in them, to the full extent of their value. If, however, it can be made clearly to appear, by satisfactory evidence, that the assignment of the bill of lading is only intended to have a limited extent, as, e. g. to bind the nett proceeds of the consignment in the hands of the consignor's agents, the consignor, notwithstanding such indorsement of the bill of lading, has still an insurable interest in the goods, since he continues to be as directly concerned in their safety as before the indorsement. (u) That a consignee of goods, who is entrusted as a commission agent to sell them, or who has accepted bills on them, or has a general balance against the consignor, has an insurable interest in such goods, at all events to the extent of his claim, is a position which has received frequent illustration in our jurisprudence. terest of consignees, factors, or agents. Prima facie the bill of lading, has an insurable goods to the indorsee of the interest in the their value; but if such in full extent of dorsement is only intended ed effect, the consignor re to have a limit tains an insura ble interest. Cases illustratthat a party ing the position having a lien on goods as consignee, comindorsee of bill mission agent, of lading, &c., has an insurable interest in them to the extent of Hib- his lien. (8) Godin v. London Ass. Comp., M'Andrew v. Bell, 1 Esp. 373. (1) Caldwell v. Bell, 1 T. Rep. 205. 745. |