the national subject insured, and of other ought to be disclosed by him, for they cannot be presumed Concealment of to have been necessarily within the knowledge of the under- character of the writer.(k) All facts, however, lying peculiarly within the knowledge facts tending to of the assured, which may expose the property to belligerent inate of the risks, ought to be disclosed to the underwriters. Thus, it has been held in the United States, that not disclosing the property insured belongs to a house established and doing business in a belligerent state, will be a material concealment, and defeat a policy made in a neutral country "for whom it may concern (1);" so the not disclosing that enemy's property embarked in a neutral ship was covered as the property of a neutral, was there also held to be a material concealment vitiating the policy. (m) Wherever, in fact, the national character of the property insured may make a material difference to the risk, it ought to be disclosed. Thus a ship and goods, the property of an American subject, were insured "from London to certain ports in America vary the esti risk. All facts privately known to the assured which may ex pose the pro perty to belligerent risks, ought to be disclosed; as, e. g. fact that the property insured belongs to a house of trade establish ed in a belligerent state; or the fact that really enemy's was an Ame against Ame rican capture: held fatal. Campbell v. Ald. 426. against all risks, American capture and seizure included;" on arrival, the ship was seized by the American government, rican subject, in on account of a war with America, which had broken out an insurance before, but was not known till after, the policy was effected; the fact that the assured was an American subject was not stated on the face of the policy, nor disclosed by the broker Innes, 4 B. & to the underwriter: Lord Tenterden and the Court of King's Bench held that the suppression vitiated the policy, because the fact, if disclosed, might have made a material difference to the risk; for, if the property had been British owned, the owner would have done all in his power to prevent the risk from occurring, but if American owned, he might lend him (k) Hoyt v. Gilman, 8 Mass. Rep. 336. Blagge v. New York Ins. Comp., 1 Caines, 549. 1 Phillips, 247. († Bauduy v. Union Ins. Comp., 2 Washington's C. C. Rep. 391., cited 1 Phillips, 278. See, however, † Buck v. Chesapeake Ins. Comp., 1 Peters' (m) † Stocker v. Merchants' Fire Concealment of self to the purposes of his own government, and assist them character of the in obtaining possession of the property insured. (n) the national subject insured, and of other facts tending to vary the estimate of the Unless a ship be within the exception of the convoy acts, her, sailing without convoy, during the operation of those acts, is a material circumstance which must be disclosed to the underwriters. A broker having applied to an underwriter to effect a policy on the ship Sophia, from Bristol to sailed without Port Mahon, &c., with liberty to seek, join, and exchange risk. That ship, in time of war, has convoy must be disclosed, excepted out of don, 1 Marsh. convoy in the English and Irish Channels; the underwriter stated, that a ship called the Sophia, of Bristol, was reported at Lloyd's as being then at sea without convoy; the broker wrote to his employer, the plaintiff, inquiring whether this Sawtell v. Lou was the same ship: the plaintiff, in reply, told him that it was; that she was to have gone to Falmouth, to join convoy; but that, he supposed, the wind was contrary and she could not fetch the port: the letter containing this statement was not communicated to the underwriters, and the court held that, as the ship in question was not within any of the exceptions of the Convoy Act, the concealment was fatal to the policy. (0) Rep. 99. 5 Taunt. 358. Aliter, if the ship is within any of the ex ceptions of that act. Long ". Duff, 2 Bos. & Pull. 209. That ship is a running ship must be disclosed. If the ship is foreign built, and, therefore, not within the scope of the Convoy Act, the fact of her having sailed without convoy need not be communicated, nor yet the fact that she is foreign built, or otherwise excepted from the operation of the act; for it is the duty of the underwriter to obtain this latter information for himself. (p) Where an insurance was effected on goods to return five per cent. for convoy and arrival; the non-communication of the fact that the vessel was to be a running ship (of which 4 D. P. C. 97. the assured was aware), was held fatal to the policy. (q) Reid v. Harvey, All material facts with regard to the state of the ship on the § 206. All material information communicated to the assured with regard to the state of the ship in the course of voyage, ought the voyage, unless, indeed, relating to matters covered by the implied warranty of seaworthiness, ought to be disclosed to be commu nicated, whe ther known by certain intelligence, or doubtful rumour. Da Costa v. Scandaret, 2 P. Wms. 179. to the underwriter, and not only certain intelligence, but Concealment of even doubtful rumours, if not too remote. Thus where a man, having a doubtful account that a ship, like one belonging to himself, had been captured, caused his ship to be insured, without communicating to the underwriter what he had heard, it was held that the insurance was void. (r) So where a policy was effected on the 24th of March on a privateer, which had sailed from Jersey on her cruise on the 6th of March, and it appeared that there were reports in Jersey, which had gained considerable credit, that some French frigates were about the coast, and had made a capture on the 7th of March; and it further appeared, that although these reports continued to prevail until the plaintiff sent the orders on which the insurance was effected, yet he had not said a word about them in his letter: this was held to be a material concealment which vitiated the policy. (s) the national character of the subject insured, and of other facts tending to mate of the vary the esti risk. Durrell v. Bederley, 283. So where the plaintiff concealed from the underwriters Beckthwaite v. Nalgrove, the fact that he had received a letter from the Cape of Good Holt's N. P. Hope, stating that there were then two or three French 388. privateers in those seas, he was nonsuited on the ground of that concealment. (t) Even though the report eventually prove to be totally false and unfounded, its communication, as we have already seen, is not on that account less indispensable, if it would materially have influenced the judgment of the underwriter in assuming the risk. (u) Though the eventually false, yet, if material, municated. report prove it must be com "Loose rumours, indeed, which have gathered together, But loose ru no one knows how, need not be communicated (v):" intelligence may be so general, and its application to subject insured so doubtful and remote, that the assured (r) Da Costa r. Scandaret, 2 P. Wms. 179. (s) Durrell v. Bederley, Holt, N. P. 283. The privateer, it appeared, had actually been captured by the French on the 7th of March, about thirty miles from Jersey. and mours and general intelli the gence of very need doubtful appli (t) Beckthwaite v. Nalgrove, Holt's N. P. 388. cited in 3 Taunt. 41. note. (u) Seaman v. Fonnereau, 2 Str. 1183.; Lynch v. Hamilton, 3 Taunt. 37.; Lynch v. Durnford, 14 East, 494. (v) Per Gibbs, C. J., in Durrell v. Bederly, Holt's N. P. 285. remote or cation to the subject insured, need not. the national Concealment of not communicate it, though it may possibly turn out to have character of the related to the subject insured. (w) subject insured, and of other vary the esti mate of the risk. of the weather subsequent to the ship's sail Whether the assured, in a retrospective policy, is bound to facts tending to disclose the state of weather subsequently to the ship's sailing, may be regarded as very doubtful: at all events it may be laid down that he can only be obliged to do so in cases where When the state the ship has sailed from a foreign port and the assured has received private information of the occurrence of some violent storm within so short a period after her sailing as to render it probable that she must have been exposed to it; if the ship has sailed from the home port, the underwriter is as well informed as the assured of the state of the weather; and, unless the storm was of considerable violence, it would not be likely to affect his estimate of the risk. (x) ing ought to be disclosed. The true port be disclosed. Hodgson v. Richardson, ' The following cases afford a further illustration of the of loading must kind and degree of information that ought to be disclosed by the assured respecting the state and condition of the subject 1 W. Bl. 463. insured on the voyage, and other points affecting the risk. It is material that the underwriter should be truly informed of the port at which the goods are really loaded on board: where, therefore, goods were insured "at and from Genoa to Dublin, the adventure to begin from the loading to equip for the voyage," and it appeared, that in point of fact the goods were loaded on board at Leghorn and not at Genoa, which was an intermediate port into which the ship was obliged to put and wait five months for convoy, and this fact, though known to the assured when the policy was effected, was not communicated to the underwriters, this was held to be a material concealment. (y) If it be in tended that the ship should If it be intended that the ship shall take a course, which, though within the limits of the policy, is yet different from that which usage has established as the customary course of different to that the voyage insured, it is material that this intention should pursue the voyage in a course which usage has established, this ought to be disclosed. Middlewood v. Blakes, 7 T. Rep. 162. (w) 1 Phillips on Ins. 258., and the case of Ruggles v. General Int. Ins. Comp., 4 Mass. Rep. 74. ibid. : a decision of Mr. J. Story's which appears well worth perusal. (z) See the two American cases, Ely v. Hallett, 2 Caine's Rep. 57., and † Fiske v. New England Ins. Comp., 15 Pickering's Rep. 310. cited in 1 Phillips, 237, 238. (y) Hodgson v. Richardson, 1 W. Bl. 463. be disclosed to the underwriter: hence, as the customary course fails to disclose any material fact relating to the condition of If the captain of a ship insured for her homeward voyage If the captain "at and from a foreign port" is aware of her having sustained an accident which may be the cause of material damage, and has the opportunity of communicating this fact to his owners in time to enable them to inform the underwriters of it before effecting the policy, but fails to do so, his failure in this respect will prevent his owners from recovering upon the policy for loss resulting from the accident, the knowledge of which he has thus been the means of concealing from the underwriters. (b) If the order for effecting an insurance have been sent up by express, this fact ought to be communicated to the underwriter, unless it appear either from the rate of premium, or some other circumstance, that he might reasonably be presumed to have inferred it. (c) the ship at the outport, this will prevent the owners from recovering for any loss arising dent, &c. so concealed. from the acci That the order to insure has been sent up by express, ought to be disclosed. Although, as we have seen, it will be a fatal misrepresent- The fact that ation if the assured state falsely that previous underwriters writers have have taken the proposed risk at the same or a lower premium than that offered (d); yet the assured is not bound to make any disclosure of the estimate formed by other underwriters declined the higher pre risk or asked a mium for it, need not be disclosed. |