Of the usual clauses and sites of the policy. expected to arrive at a certain port abroad, to protect her formal requi- during her whole stay in such port, from the moment of her arrival, the form of insurance" at and from" ought always to be adopted in insuring homeward voyages; indeed, in English policies, from the many advantages it presents, it is the form almost always employed in practice. The common printed clause is only appli cable to an in surance on ships and merchandize. 5. Clause describing the Subject insured. § 22. It is a rule, founded on very plain principles, that every policy of insurance must distinctly specify the subject intended to be insured, whether it be ship, goods, freight, profit, money advanced on bottomry and respondentia, or other interest. 66 The clause in the common printed form of policy, in which the subject matter of insurance is set forth, is as follows (a): Upon any kind of goods or merchandizes, and also upon the body, tackle, apparel, ordnance, munition, artillery, boat, and other furniture of and in the good ship or vessel," &c. This clause is, in terms, only applicable to the case in which the same party being interested in both ship and cargo Reason of this. wishes to insure both in one common policy: the reason of this is, that in the earlier ages of maritime commerce, when our present form of policy was framed, merchants employed their own ships to carry on their own trade. Now, however, the trade of the ship-owner has become a distinct business from that of the merchant: the former considers his vessel, not as an instrument to carry on his own commerce, but as itself a source of emolument; and the latter either hires of the ship-owner a vessel for the transport of his goods on a given voyage, or different merchants put their goods on board the same vessel, and pay freight to the ship-owner for carrying them therein to their port of destination. (b). It is obvious, therefore, that this clause, as it stands in the common printed form of policy, must be wholly inadequate, without alteration, to meet the exigencies of modern commerce: instead, however, of providing different forms to meet the How this clause is alter- plicable to the "profits," "bot- (a) See form No. (6). (b) Benecke, Pr. of Indemnity in Marine Ins., p. 44, 45. various cases of insurances on ship or cargo separately, on freight, on profits, and other interests now held capable of the protection of Marine Insurance, the English underwriters still adhere to the old printed form; and, in order to attain the requisite accuracy of description, resort to the clumsy and inartificial expedient of introducing in writing, at the foot or on the margin of the policy, a statement of the real nature of the subject matter intended to be insured (as, e. g., “on profits," "on freight," " on bottomry," " on 100 bales of cotton, marked, &c.; ") leaving the old printed clause standing entirely unaltered. The words thus inserted in the margin, or at the foot of the policy, apply indefinitely to the whole of the policy, and are considered as controlling the sense of the general printed clause applicable to ship and goods, and narrowing it in point of construction to the particular species of interest, whether "ship," "goods," "freight," "profit," &c., the name of which is so inserted. (c) The policy, in fact, becomes a policy on that subject alone, the name of which is inserted in the margin; and in declaring thereon no notice need be taken of the formal printed clause as to ship and goods. (d) "The meaning of this marginal memorandum," says Lord Ellenborough, "may be translated thus. We mean to insure the subject so named, freight,' for instance, arising and accruing during the limits of the voyage within described, from the carriage of goods on board the ship within mentioned, against the perils within enumerated, and upon the premium herein specified.” (e) 6. Name of the Ship. § 23. As the nature of the risk depends very materially on the character of the ship employed, it is obviously a matter of great importance to the underwriter to know the name of in (c) Per Lord Ellenborough, Robertson v. French, 4 East, 140. (d) See Robinson v. Tobin, 1 Stark. (e) Per Lord Ellenborough, in Robertson v. French, 4 East, p. 141. Of the usual clauses and formal requi sites of the policy. The principle as to the naming of the ship in the policy is nil facit error nominis quam de corpore con stat. Insurance on ship or ships. the ship on which the insurance is to be effected, or the property which is the subject of insurance is to be embarked. Hence the rule, that in all insurances, whether on ship or goods, the name of the ship intended to be employed in the voyage must be accurately inserted in the policy. As, however, the name of the ship is only required to be inserted in order that the underwriter may really know what ship is intended to be employed, it is clear that if he can be proved in point of fact to have had this knowledge, an error in the name of the ship will not vitiate the policy. Error nominis alicujus navis non attenditur, quando ex aliis circumstantiis constat de navis identitate. (f) On ne doit pas pointiller sur le nom du navire, pourvu que l'erreur qui s'y est glissée n'empêche pas d'en reconnaître l'identité. (g) Hence, immediately following the blank left in our common policy for inserting the name of the ship or master, come the words, or by whatsoever other name or names the same ship or the master thereof is or shall be named and called." As, moreover, circumstances may frequently arise, especially in case of shipments made from abroad, in which the merchant, though desirous of protecting his goods by an immediate insurance, may be utterly ignorant of the particular vessel by which they may be consigned to him, a relaxation of the rule requiring the insertion of the name of the ship in the policy is in such cases permitted; and the party insuring is allowed to effect the policy on his property, "on board any ship or ships;" on condition of declaring, as soon as he becomes aware of it, the name of the ship or ships, on board which it has actually been loaded. (h) (f) Casaregis Disc. i. No. 139., cited by Emerigon, chap. vi. sect. 3. vol. i. p. 160. ed. 1827. (g) Emerigon loco citato. See also post, chap. vii. and the cases there cited. Hunter v. Molineux, 6 East, 385. Le Mesurier v. Vaughan, 6 East, 381. Clapham v. Cologan, 3 Camp. 382. (h) As to the insurance on ship or ships, see post, chap. vii. The legality of the practice was declared, so far back as 1794, to be too well established by usage and authority to admit of dispute. (Kewley v. Ryan, 2 H. Bl. 348.) In France an insurance of this nature is called "assurance in quovis," and is expressly permitted by the Ord. de la Marine, tit. vi. art. 4., and the Code de Commerce, art. 337. It is ably explained by Emerigon, chap. vi. sect. 5. vol. i. p. 173. ed. 1827. 7. Name of the Master. § 24. The name of the master, like that of the ship, is required to be truly inserted in every policy, and that for the same reason, viz., that the safety of the adventure is in some degree dependent on the character of the master. As, however, many occasions may arise in the course of the voyage, which may make it necessary to change the master, the same strictness is not required in this respect as in the case of the ship; and accordingly, it will be observed in our common printed form of policy, that after the blank left for the name of the master, these words follow: "or whoever else shall go for master in the said ship." (i). 8. Clause describing the Commencement and Termination of the Risk. § 25. In our ordinary printed policies the duration of the risk on ship and goods is described in the following clause, the blanks in which must be filled up, according to the nature of the adventure which the party effecting the policy wishes to insure. "Beginning the adventure upon the said goods and merchandizes from the loading thereof on board the said ship [at A. B. ]upon the said ship, &c. [at and from A. B.], and so shall continue and endure during her abode there on the said ship, &c., and further until the said ship, with all her ordnance, tackle, apparel, &c., and goods and merchandize whatsoever, shall be arrived at [C. D.], upon the said ship, until she hath moored at anchor twenty-four hours in good safety, and upon the goods and merchandize, until the same shall be there discharged and safely landed." The meaning of this clause, when stripped of its verbiage, is, Meaning of this that the risk upon the goods is to commence from their being (i) The French effect the same object by inserting the words "ou autre pour lui:" see Emerigon, chap. vii. sect. 1. vol. i. p. 184-187. ed. 1827. See also the precedents of French policies, in Vaucher's Guide to Marine Insurances, especially the clause. Of the usual clauses and formal requisites of the policy. Duration of risk on goods. Duration of risk on ship. loaded on board the ship wherever that may be; to continue upon them during the whole time they remain on board, and not to terminate until they have been discharged from the ship, and safely landed at the port of delivery. The risk upon the ship is to commence at the port from which she sails on the voyage insured, wherever that may be, to continue during her stay there, and not to terminate until after she has moored at anchor for twenty-four hours in good safety, at her port of destination. The effect of this clause, however, depends of course upon the mode in which the blanks are filled up. (k) The multifarious exigencies of commerce in a country like our own, which lead our merchants and ship-owners to engage in enterprises almost infinitely varied, require the same diversity in describing as is displayed in undertaking them; and policies are accordingly filled up in every variety of form, as we shall have occasion to see more at length when we come to consider the construction, which the courts of law have from time to time put upon the loosely drawn and imperfectly expressed clauses, by which our merchants have endeavoured to adapt the old policy of the Lombards to the widely extended commerce of modern times. (1) 9. Liberty to Touch or Stay. The course of the ship's navigation is, as we have seen, never in terms expressed in any policy; but it is an implied condition of every policy, as we shall see more at large hereafter, that the ship insured, in sailing between the termini of the voyage insured, shall pursue that course or track, which long usage has established to be the safest and most direct mode of navigation, without deviating from such course to touch at any ports or places whatsoever, which lie between the extreme points of the voyage, unless express liberty for that purpose be inserted in the policy. As very few voyages, however, occur, in which it is not (k) See Robertson v. French, 4 East, 130., and the other cases of the same class, which will be found collected and commented upon in ch. xiv. post, on the Duration of the Risk, where this whole subject is fully treated. (1) See post, Part I., Chap. XIV. |