Construction of permitted to avail himself of the representation not being true in the sense in which he has understood it. representation. Freeland v. 7 East, 462. This rule will especially hold where there is any thing in the form of the statement itself to show that in all probability it was not meant to be taken as a positive representation; or where it suggests on the face of it, as by reference to other sources of information, that it is not to be taken as a complete statement of the case. (m) Thus, where a policy was effected on a ship "lost or not lost at and from twenty-four hours after her arrival at her first place of trade on the coast of Africa, during her stay and trade on the coast, and at and from thence to Liverpool," and the assured had submitted to the underwriters, before the subscription of this policy, a letter from the master containing the latest intelligence as to the then state and condition of the ship (which appeared to have been then for some time on the coast of Africa), but referring to a former letter from the master on the same subject, which was not exhibited, the Court held that the mention of the former letter, in the second, ought to have put the underwriters upon an inquiry as to the nature of the first communication, and that, as they had not made this, they were not entitled to complain of the suppression of the first letter as a concealment. (n) The words of a The words of a representation, equally with those of the representation, where techpolicy itself, must, where they are technical, or of peculiar mercantile import, be construed with reference to the usage of trade. nical, or of pe culiar mercan- Chaurand v Thus, where it was represented that a ship was to sail "in the month of October," evidence was admitted to show that this, by the usage of trade, meant that she was to sail "between the 20th of October and the 1st or 2d of NovemParke's N. Pr. ber;" and as she actually did sail on the 11th, this was held a failure to comply with the representation, that avoided the contract. (o) 43. (m) Brine v. Featherstone, 4 Taunt. 867. Freeland v. Glover, 7 East, 462. (n) Freeland v. Glover, 7 East, (0) Chaurand v. Angerstein, Peake's N. Pr. 43. representation. Evidence of a representation can never be adduced to con tradict the plain terms of the policy; but may, as it seems, to supersede the usage of It has already been observed, that evidence of a positive Construction of representation can in no case be admitted to contradict the express terms of a written policy. (p) It has been made a question how far a positive representation may supersede an usage of trade inconsistent with it, the terms of which are not expressed in the policy. For instance, supposing it were represented that a ship, insured from A to B, should not stop at C, an intermediate port, where all ships insured from A to B are accustomed to stop by the usage of trade, would the underwriter be free from all liability on the policy, if the ship, contrary to the positive representation, but in compliance with the established usage, were to stop there? It appears to be clear that if, by the positive representation, the underwriter had been induced to take the risk on more favourable terms, the policy, as to him, would be avoided by such failure to comply with the representation. (q) trade. A positive rethat the ship is seaworthy in presentation some respects does not release the assured from the obligation of the im plied warranty worthy in other It is not necessary, as will appear more at large in treating of concealment, that the assured should make any statement with regard to any of the constituents of seaworthiness. Should he, however, in answer to inquiries from the underwriter, or otherwise, make a positive representation as to any of these facts, his position, as regards the underwriter, is not thereby altered in the slightest degree; e.g. if that she is seahe represented that the ship was copper sheathed, or properly respects. found in sails, he would not, because he had made the representation, be any the less bound by the implied warranty that she was also seaworthy in all other respects. If, indeed, he represents some fact inconsistent with a state of seaworthiness, and the underwriter, notwithstanding this statement, yet choses to take the risk, as, if he represented that the ship was not properly coppered, or not adequately found in sails, this would operate so as to release him to this extent from the obligation of the implied warranty. (r) representation. Every repre Construction of § 197. It is an established rule with regard to representations, that they must, in all cases, be taken to refer to the time of subscribing the policy. Every representation is construed to mean, that the facts represented are then true, and that no other material facts are then known to the assured. sentation is taken to refer to the time of subscribing the policy a statement previ ously made will not be taken to be a represent ation, if inconsistent with a made at the time of subscription. Dawson v. Atty. 7 East, 367. What has been stated by the broker previous to the actual subscription of the policy, is not to be taken as a representation, if it be qualified or controlled by any subsequent statement made at the time of signing that instrument. Thus, later statement where a broker stated to the underwriter, when the slip was subscribed, that the ship was an American, but afterwards, when the policy came to be signed, said nothing of the sort, but only "that it was an insurance on goods by the Hermon," without a word as to the national character of the ship, Lord Ellenborough held, that the first conversation had been qualified and controlled by what followed, and that the ship was not represented to be American so as to require documents of nationality. (s) A representation, however, time of signing made at the time of signing the slip will be considered binding, unless there is evidence of its being subsequently altered or withdrawn, either expressly, or by implication. Hence, where about a week before the policy was signed, the broker, on putting down the names of the underwriters on the slip, stated that the ship would sail under convoy, and with a certain armament, this was held to be binding, there being no evidence of any further conversation on the subject having passed between the parties, either when the policy was signed, or in the intervening period. (†) A statement made at the the slip will be taken as a representation, if not contra dicted by later statements, made at the time of signing the policy. Edwards v. Footner, 1 Campb. 530. Christie v. Secretan, Where, at the time of signing the policy, the broker spoke 8 T. Rep. 192. of the ship as an American, but said he was directed not to warrant any thing, this was held to amount to a representation that she was an American, and to make it necessary for her to have all those documents on board that an American ship ought to have. (u) (s) Dawson v. Atty, 7 East, 367. (t) Edwards v. Footner, 1 Camp. (u) Christie v. Secretan, 8 T. Rep. 192. representation. ation may be withdrawn before policy is signed; and if Any represent erroneous, ought to be so Of course the assured is at liberty at any time before the Construction of subscription of the policy to withdraw any previous representation, by which he does not wish to be bound; and, in fact, if he ascertains before the policy is actually signed, that there is any reason to suppose the representation to be false, he is bound to do so at the earliest possible opportunity, so that the underwriters may not be deceived by acting on false forthwith. intelligence. Thus, where the agent of the assured, who had previously sent intelligence, from which it was naturally to be inferred that the ship was safe, had, before the post went out, heard of her loss, so that he might have communicated this fact to the underwriter by due course of post, time enough to have stopped the insurance, his not doing so was held to avoid the policy. (v) It has been held in the United States, and apparently on good grounds, that, although the assured, or his agents, are bound to act with all promptitude and despatch in countermanding an order for insurance founded on false intelligence, yet they are not bound to resort to any extraordinary means of communication for this purpose: they need not send an express; it is enough if they lose no time in availing themselves of the facilities of the post. (w) But the assured to resort to extraordinary are not bound means of de spatch for this purpose. SECT. VI. A Misrepresentation made to the first underwriter extends to all. § 198. Where there are several underwriters on the same Misrepresenta policy, a representation of a material fact to the underwriter tion to the first whose name stands first on the policy, extends to all the rest, so that each, when it proves false, may avail himself of the defence. The ground of this rule is the reasonable presumption that the subsequent underwriters subscribe the policy from the confidence reposed by them in the skill and 12. (v) Fitzherbert v. Mather, 1 T. Rep. † M Lanahan v. Universal ins. Comp., 1 Peter's Supreme Court Rep. 186. 1 Phillips, 228, 229. (w) See † Green v. Merchant's Ins. Comp., 10 Pickering's Mass. Rep. 402. tion to the first underwriter Misrepresenta judgment of him whose name they see stand first in the policy, and from their belief that he had duly ascertained and weighed all the circumstances material to the risk. (x) extends to all. Limitations on the generality of this rule. It only extends to representations of such reasonable to 1. This rule, however, is subject to many limitations: In the first place, it must strictly be confined to those matters of intelligence relating to the subject of the proposed assurance, with regard to which it is reasonable to suppose that matters as it is the first underwriter would require information, and without being informed of which, it may be presumed, he would not the first under- have subscribed the policy; it cannot, therefore, extend to such representations as relate to matters of collateral agreement, which a subsequent underwriter can have no reason to infer, from the terms of the policy, to have been communicated to the first. suppose that writer would require to be informed about, before subscribing the policy: not to the representation of matters of collateral agreement. Thus, in Pawson v. Watson, Lord Mansfield held, that a representation that "the ship mounts twelve guns and twenty men," being in effect an engagement that the ship should sail with that armament, could not effect subsequent underwriters, to whom it had never been communicated, merely upon proof that it had been made to the underwriter whose name stood first in the policy. "A representation to the first underwriter," says his lordship, "has nothing whatever to do with that which is the agreement or the terms of the policy; no man who underwrites a policy, subscribes, by the act of underwriting, to terms of which he knows nothing, but he reads the agreement and is governed by that: matters of intelligence, such as that a ship is, or is not missing, are things in which a man is guided by the name of the first underwriter, who is a good man, which another will therefore give faith and credit to, but not to a collateral agreement, which he can know nothing of." (y) Nor to repreOf course if the representation to the first underwriter be sentation of not of material facts, it cannot avail a subsequent undersuch things as (x) The English cases which establish the rule are Pawson v. Watson, Cowp. 785. Barber v. Fletcher, Dougl. 306. Stackpoole v. Simon, Park, 933. 8th ed. Marsden v. Reid, 3 East, 572. Feise v. Parkinson, 4 Taunt. 640. Fo- |