terest of cap tors. detained under the previous order of council, he not having Insurable inuntil that time any thing more than a prospect or speculation of future interest in such ships. But the decision of the House of Lords imports that he had an insurable interest as well in the ships lost before, as in those lost after the declaration of hostilities; and in the case of Routh v. Thompson, Lord Ellenborough decisively lays it down, that an insurable interest vests in the crown from the moment the ship is lawfully captured under any orders in council for her detention, although the insurance may be effected before hostilities have been openly declared. (n) Adoption of crown a year policy by the after its subscription will support a count policy to have averring the been effected on behalf of the In the case last mentioned, the captors, as we have seen, were held to have no insurable interest so as to support a count (the only one then before the court), averring the interest to be in themselves; when next brought before the court the interest was averred to be in his Majesty, and in addition to the facts already stated, it was proved, that on the 20th of June, 1810 (which was exactly one year after the judgment given by the court in the former case), an order in council had been made, by which his Majesty expressly adopted and 13 East, 274. approved of the insurance as having been made for his benefit. Upon this additional evidence the court unanimously gave judgment for the plaintiffs. (0) crown. Routh v. Thompson, cation does not seem necessary. In both these cases the ratification of the insurance by the Express ratificrown was in express terms; it should seem, however, by what fell from the court in the case of Stirling v. Vaughan, and upon the principle that the law will presume, if nothing appears to the contrary, that every person accepts what is for his benefit, that captors, in every case of legal capture, have an implied authority to insure on behalf of the crown, and may, therefore, in all such cases, recover on a count averring the interest to be in the King, without any express subsequent ratification by him. (p) The position of Lord Mansfield in the Omoa case, that pos- Possession, (0) Routh v. Thompson, 13 East, (*) See the judgment of Lord Ellenborough, Routh v. Thompson, 13 274. East, 284, 285. (p) Stirling v. Vaughan, 11 East, coupled with T Insurable in terest of captors. expectation of a future grant from the crown, can able interest where the prac. such grant is uniform and invariable. session, coupled with the expectation of a future grant from the crown, gives an insurable interest, can, as we have seen, only be supported, if at all, in cases where such expectation is warranted by universal practice; accordingly, where an insurance was effected on behalf of French ship-owners only (if at all)" on bounty to be allowed by the French government on the give an insurtonnage" of a South Sea whaler; and it appeared that tice of making by a French law any vessel engaged in the South Sea fisheries, which should bring back the produce of its fishery to the amount of half its burden, was entitled to a bounty under certain conditions, all of which, however, had not been complied with by the ship in question; but no evidence was given that there had been an uniform practice, without exception, for the French government to grant such bounty under the circumstances; the court held, that, at all events, in the absence of such proof, the expectation of a bounty must be regarded as a mere contingency, and was not an insurable interest. (q) Hence the owner of a French whaler has no insurable interest in a bounty which may be, but is not proved al ways to be, granted by the French govern ment. De Vaux v. Law on this subject in the United States. The law in the United States as to this subject seems to be, that an insurable interest in prizes can be acquired only by an actual grant from the government. (r) Other cases of insurable in terest. The owner of the cargo has no insurable interest in the ship. ART. 9. Other Cases of Insurable Interest. § 115. There are other cases of insurable interest, which cannot be ranged under any of the foregoing heads. A party who is interested in the cargo alone has no insurable interest in the ship; for the goods may arrive safe, though the ship be lost, and vice versâ. Hence, where the owners of the cargo effected an insurance on money expended for reclaiming ship and cargo;" "the loss to be paid in case the ship does not arrive" at the port of destination; it was held, that the assured had no insurable (q) Devaux v. Steele, 6 Bingh. N. C. Story in the case of The Joseph, 1 Gallison, 558., cited in 1 Phillips on Ins. 131. 358. (r) † See the observations of Mr. J. interest in the subject insured, against the event sought to be Other cases of provided for by this policy. (s) a insurable interest. The holder of a bill drawn by the captain abroad for the ship's expenses, may, on the bill being dis honoured, in A bill of exchange was drawn by the captain abroad to cover ship's disbursements, containing on the face of it memorandum directing the holder to insure the amount of the bill, and charge the premium, &c. to the ship's and captain's account: the bill having been dishonoured at maturity, the holder was considered, by Chief Justice Gibbs and sure the amount the Court of Common Pleas, to have an insurable interest in the bill, so as to be entitled to recover on his own account on a policy effected by him on the bill specifically described therein. (t) for his own benefit. There can be interest in bills no insurable drawn on a contingency; for as nothing could be gain can be lost by their destruc tion, i. e. there is nothing exposed to risk. Instead of borrowing at respondentia, captains engaged in the East India Company's trade had, since the year 1810, practised the following mode of raising money to pay for their outward investments: bills were drawn to the required amount upon the captain's agents at Calcutta or the other ed by their presidencies, payable in so many days after the ship's arrival safety, nothing outwards; these bills were drawn in two sets, one of which was left in the hands of the indorsee in this country, who had made the required advances on its security; the other set, together with goods to more than the amount consigned (with the bill of lading indorsed) to the captain's agents in the East Indies, was taken out in the ship, and the indorsee of the bills then effected insurance on them for his own benefit: the understanding was, that if the ship arrived safe the bills were to be paid; if she did not arrive they were not to be paid. After the practice had prevailed some time a case came before the Court of Common Pleas, in which the indorsee of bills so drawn and insured sued the underwriter, describing them as "bills of exchange," and averring the total loss of ship, goods, and the set of bills on board of her Chief Justice Best held that upon such policy the assured could recover nothing; the instruments being (8) Kulen Kemp v. Vigne, 1 T. Rep. 364. (t) Tasker v. Scott, 1 Marsh. Rep. 556. insurable in terest. Other cases of drawn on a contingency, were not bills, but so much waste paper; the plaintiffs had lost nothing by them, because they could have recovered nothing by them: they had, therefore, no insurable interest, because they had nothing at risk. (u) The master who buys in ship and cargo has no insur able interest such repur It has been decided in the United States, and apparently on very satisfactory grounds, that if, upon the occurrence of some disaster, the cargo is put up to sale and bought in by therein, unless the master, he acquires no insurable interest by such purchase. (v) Neither has he, as master, any insurable interest in the ship (w); and, consequently, if, upon the ship's being put up to sale, he becomes the purchaser, he cannot insure her unless his purchase be subsequently ratified by the owners, who alone, notwithstanding such purchase, have an insurable interest. (x) chase be ratified by those whom it may concern. The shipper of goods does not acquire an in surable interest in ship by defraying the ex pense of repairs. It has also been there decided that the shipper of the cargo, whose agent has defrayed the expense of necessary repairs done to the vessel in a foreign port, does not thereby acquire an insurable interest in the ship, unless he have acquired a lien thereon. (y) Of wager policies. Definition of a wager policy. Of wager policies in point of form. SECT. III. Of Wager Policies. § 116. The term Wager Policy relates to the form of the instrument, as well as to the nature of the contract. A wager policy may be defined to be one in which the parties, by express terms, disclaim, on the face of it, the intention of making a contract of indemnity. (z) Such a policy, accordingly, is generally known by having one or other of the following clauses written on the face of (u) Palmer v. Pratt, 2 Bingh. 185. See also Lowry v. Bourdieu, Dougl. 468. Comp., 6 Pickering, 198., cited in (y) + Buchanan v. Ocean Ins. Comp., (v) † Barker v. Marine Ins. Comp., 6 Cowen, 318., cited in Phillips, vol. i. 2 Mason, 369., cited in Phillips, vol. i. (w) Ibid. See Phillips, vol. i. See Kulen Kemp v. Vigne, 1 p. 78. (z) Per Mr. J. Chambre in Lucena v. Crawfurd, 3 Bos. & Pull. 101. cies. it: "Interest or no interest," or "Without further proof of Of wager poliinterest than the policy," or " This policy to be deemed sufficient proof of interest," or any other terms which would either entitle the assured to recover against the underwriters a certain stipulated sum of money, whether he has any interest in the ship or cargo or not; or that bind the underwriter not to require any other proof of the assured's interest, but the admission of such interest on the policy. (a) As, moreover, in these cases there is nothing actually at risk which can be sea-damaged or abandoned, such policies frequently also contain the clause, "Free of all average, and without benefit of salvage." It has been made a subject of very learned inquiry whether such policies were legal at common law. Without going more at large into the investigation, it will be sufficient to give what is now firmly established as the true result of the authorities; viz. — 1. That by the law of England, as it stood at the time of passing the act of 19 G. 2. c. 37., a wager policy, properly so called, i. e. one in which the parties, by express terms, such as the words "interest or no interest," or "without proof of interest," disclaimed making a contract of indemnity, was then (contrary to older determinations) deemed a valid contract of insurance. (b) Wager policies legal at the time of passing were deemed the act of 19 G. 2. c. 37. common form was always taken to be a policy upon in That a policy, containing no such clause disclaiming or dis- A policy in the pensing with the proof of interest, but effected in the common form, was, at common law, as it still is, considered to be a contract of indemnity only, upon which the assured could never recover without proof of interest. (c) About the year 1746 wager policies, properly so called, having then obtained the sanction of the law, became so pre (a) See the judgment of Chief J. Best in Murphy v. Bell, 4 Bingh. 569 -572. (b) This point was established by Asseviedo v. Cambridge, 10 Mod. 77. A.D. 1710. De Paiba v. Ludlow, 1 Dean v. Comyns, 361. A.D. 1721. (c) For this latter position, see the terest. |