pursue this usual manner of making the voyage, without any delay or deviation: this implied condition is generally termed a condition not to deviate; and any failure to comply with it is, as we shall see hereafter, exempts the underwriter from all liability from the moment of deviation. (i) 5. Not only the course of the voyage insured, but all the other generally known usages of trade and navigation, are always supposed to be known by the parties contracting for a mercantile indemnity; and therefore, though never expressly inserted in any policy, are as binding on the parties as though they were. 6. It must never be forgotten, therefore, that the whole contract between the assured and the underwriters is only partially expressed in the policy by which that contract professes to be embodied; and that the real contract between them is, that, supposing the underwriters to have been previously informed beforehand of the real nature of the risk, supposing also the ship to have been sea-worthy when the risk commenced, and never afterwards to have deviated from the usual course of the voyage insured, and the assured not to have precluded himself from recovery on the ground of illegality of the risk, then the underwriters engage to indemnify him, according to the terms of the policy as explained by usage, for any loss he may have sustained as a direct consequence of the enumerated perils. SECT. VI. Of the Policy as affected by the Stamp Acts. § 37. The stamping of policies is now regulated by the unrepealed provisions of the 35 G. 3. c. 63., and by the 7 Vict. c. 21.; the former relating generally to the stamping of policies, and the latter fixing the amount of duties. The 11th section of the 35 G. 3. c. 63. defines a policy 35 G. 3. c. 63. (i) Per Buller, J., in Newman v. Cazalet, Park on Ins., p. 900, 8th ed. s. 11., what a policy is. Of the policy as affected by of assurance to be a written or printed contract of insurance, the stamp acts. and then provides that every such policy shall specify the premium, the risk insured, the names of the underwriters, and the sum insured; otherwise it shall be void. Having thus ascertained the subject of legislation, the act proceeds to provide (in sect. 14.) that no such policy shall be given in evidence, or be good and available in law, unless it be duly stamped; and stamped paper. then declares it illegal to affix a stamp upon any policy after it has once been written or printed, on any pretence whatsoever. (j) The effect, therefore, of this section is, that every policy must be written or printed on stamped paper. Sect. 14. Every policy must be printed on Penalties on effecting or subscribing policies not duly stamped. In the 15th, 16th, and 17th clauses, the act imposes a penalty of 5007. upon any person, broker, or underwriter, engaged in effecting or subscribing policies not duly stamped ; but these sections of the act have been virtually repealed, as to the amount of penalty, by the 7 Vict. c. 21. sect. 4., which imposes on the parties so offending the mitigated Broker cannot penalty of 100l. The 16th section, which, as to this point is still in force, prohibits any broker who has been engaged in spect of policies effecting a policy on unstamped paper to recover either for his premium or his brokerage. (k) recover pre miums in re executed on unstamped paper. The Royal London As surance may issue un stamped labels containing the heads of in The 18th section of the act takes notice of the practice adopted by the London Assurance and Royal Exchange Assurance Companies of preparing a label containing the heads of the insurance proposed and signed by the insurers, from which the policies are afterwards made; the act by this 18th section legalises the practice so far as to exempt the officers of the two companies from the penalties imposed by the previous sections, duly stamped provided the day on which the label is made be truly expressed on it in words at length, and a policy be made out 35 G. 3. c. 63. from it, duly stamped, within three days afterwards. This pro surance, from which, however, policies must be made out within three days. s. 18. 7 Vict. c. 21. s. 4. (j) This section applies even to cases where the commissioners of stamps allow the proper stamp to be afterwards affixed on payment of a penalty. (Roderick v. Hovil, 3 Camp. 103.) (k) And it has been determined upon this section, taken in connection with the 14th, that the broker is equally unable to recover, even where the commissioners of taxes have allowed the proper stamp to be afterwards affixed on payment of a penalty. (Roderick v. Hovil, 3 Camp. 103.) vision is continued, as to the same two companies, but no Of the policy others, by the 7 Vict. c. 21., sect. 4. as affected by the stamp acts. Sect. 13., as to One of the most important sections of the act, however, and that which has given rise to the greatest amount of liti- alterations. gation, is the 13th section relating to the alterations which may be made in the policy without requiring an additional stamp. This section in substance provides that all alterations, legal at common law, may still be made in policies without requiring a fresh stamp, provided, 1. That such alteration be made before notice of the determination of the risk originally insured. 2. That the original rate of premium exceed 107. per cent. 3. That the property in the thing insured remain the same. 4. That the alteration do not prolong the term of the insurance beyond a year. over-valuation on merchandize an abatement of duty is allowed, on proof given of short interest and return of premium. 5. Nor increase the amount originally insured. As it is obvious that valuations made in this country for In case of the purposes of insurance on merchandize shipped from abroad cannot be expected to be strictly accurate, and as it would be a hardship on the party insuring to make him pay a higher rate of duty than is proportionate to the real amount of his interest, provision has been made for this case in the act (sect. 10.) by empowering the commissioners of stamps where such over-valuation is clearly made out, to allow for an abatement for the excess of duty, upon due proof being given that the underwriters have on their side bonâ fide allowed a return of premium for such short interest. (7) Such are the main provisions of the act of 35 G. 3. c. 63. relating to the general subject of stamping sea policies: with regard to the amount of duty payable on these instruments, the provisions of the statute law have varied considerably since that act was passed. The heavy duties which it imposed were continued down to the end of the (1) 35 Geo. 3. c. 63. sec. 10. As to the great it has been amount of duty, Of the policy as affected by gradually di- 55 G. 3. c. 184. 7 Vict. c. 21. French war of the Revolution: on the return of peace it was the stamp acts. very reasonably apprehended that so high a rate of duty might operate as a check on the practice of Marine Insurance in this country, by driving merchants and shipowners to effect their insurances with the underwriters of Amsterdam, Hamburgh, and other trading towns of the Continent, in which no tax was imposed upon the effecting of policies. (m) Accordingly, in the year 1815, the scale of duties was lowered (n); it was still, however, found to be too high by the safest of all tests, a diminished amount of revenue on an increased amount of shipping; and it was again diminished in 1833 (0): since that period it has been still further reduced by the act of the 7 Vict. c. 21., which is that now regulating the amount of duty payable on sea policies. (p) Duties on voyage policies, per cent. This act abolishes the distinction heretofore maintained for the purposes of taxation, between coasting and foreign voyages, and declares, 1. That on all policies, on any description of interest, or on any kind of voyage, the following duties shall be paid: For every 1001. insured, and for every fractional part of 1001. where the premium does not exceed 10s. per cent on the sum insured (g) Where the premium does not exceed 20s. per cent. (m) Macculloch's Comm. Dict., art. Insurance. - 3d. not only is no tax of this kind imposed, but insurers are even exempted (n) By the General Stamp Act, 55 from the necessity of having a patent or certificate, which is required for most other trades. Geo. 3. c. 184. (0) 3 & 4 W. 4. c. 23. (p) There can be no doubt that this tax ought either to be entirely abolished or still very considerably reduced; it is very much higher than is levied in any other country: in the United States no such tax exists: in France (q)" "And where the whole sum insured shall exceed 100%., then for every 100l., and, also, for every fractional part thereof;" see schedule to act in appendix. 2. For every 1001, and for every fractional part of 1007., Of the policy insured on a Time Policy, s. d. as affected by the stamp acts. Duties on time 2 6 policies, per 3. On every policy of mutual insurance, whereby divers persons insure one another without premium, not being a time policy. For every 1007. insured, and for every fractional s. d. - 2 6 4. If, however, the separate interests of two or more distinct persons be insured by one policy, the respective duties, as the case may require, shall be charged thereon in respect of each and every fractional part of 1007., as well as of every full sum of 1007., which shall be thereby insured upon any separate and distinct interest. This last section of the schedule requires some explanation: it was originally introduced (r), and is still retained in the Stamp Acts, on account of a practice which had become common amongst insurance brokers, and by which they were enabled to defraud the revenue of a portion of the duty payable on sea policies. The practice was this: a broker employed to effect insurances for several persons, whose interests might amount to fractional sums (i. e., to 1007. odd, 2001. odd, &c.), would procure insurances to be made for the several interests as for one entire sum, in order to avoid paying the duty which would have been due to the revenue in respect of these fractional sums, had the several interests been insured in several policies. (s) Such was the contrivance which the clause was introduced to prevent: the following case will illustrate the nature of the practice, and the rigour with which the courts of law have applied this clause in suppressing it. (7) It occurs first in the Stamp Act of 1807, 48 Geo. 3. c. 149. tit. "Policy of Assurance." Schedule See Mr. Scarlett's argument in cent. Duties on policies of mu Duties to be imposed where several distinct interests are policy. insured in one Reasons of the introduction of this regulation. |