contents of Lloyd's foreign lists must be so far supposed known to underwriters transacting business there, as to dispense with the communication of material facts therein contained. (r) Matters lying, or presumed to lie, as much within the knowledge of the underwriter as of the as sured, need not Although the point is thus left doubtful as far as direct authority is concerned, it should seem that it would not be be disclosed. going too far to presume, that the underwriters frequenting Lloyd's are acquainted with the contents of the foreign as well as the English lists. In the same case it appeared that the assured, before effecting the policy, had been informed by letter from Cadiz that a ship called the Traveller had sailed thence the day before the ship insured, and also that, more than a week before the insurance, it was announced in Lloyd's English lists that the Traveller had been towed in distress into Kinsale, and that another ship, the William, which had sailed from Cadiz eight days after the ship insured, had arrived safe at Gravesend; it was held that the non-communication of these latter facts, being as accessible to the underwriter as to the assured, did not vitiate the policy. (s) The sole ground upon which Lloyd's lists are admissible in evidence against the underwriter upon a question as to the materiality of a concealment, is that he is presumed to have consulted them with reference to the risk proposed, before assuming it: if therefore it appears that there has been any false representation made to the underwriter as to the nature of the risks, and that the underwriter, in effecting the policy, acted solely in reliance on that representation, without, in fact, consulting the lists; the presumption that he knows their contents, which was founded on the probability of his consulting them, of course falls to the ground. If, in such case, in addition to the false representation, there have also been the concealment of a material fact, such concealment (7) Elton v. Larkins, 5 C. & P. information which alone made this fact 85.; 8 Bingh, 198. (s) Elton v. Larkins, ibid. But although the disabled state of the Traveller was as well known to the underwriter as to the assured, yet the material to the risk, viz. that the Tra- If any mishave been made representation to the under writer, and he appears in fact not to have consulted Lloyd's list, the inference arising from his presumed knowledge of their contents falls to the ground. Marshall, Wells. 116. Mackintosh v. 11 Mees. & Matters lying, or presumed to lie, as much within the knowledge of the underwriter as of the as be disclosed. But although will avoid the policy, although the fact concealed might have been learnt from the lists, unless, indeed, it can be proved that the underwriter actually inspected them. (t) If the intelligence contained in Lloyd's lists can only be sured, need not connected with the risk proposed, by means of information which the assured is privately possessed of, he will be bound to disclose such information, if material, and his failure to do so will vitiate the policy; for although in such case the mere fact as it stands in Lloyd's lists is presumed to be known to the underwriter, yet its connexion with the risk could only be known to him through the information which the assured has privately received and withholds. (u) the fact itself may be contained in Lloyd's lists, yet, if the information ne cessary to show its materiality to the risk be privately known to the assured, and by him withheld, this is a fatal concealment. time intelli in the public papers are so far presumed to § 209. It has been a question a good deal canvassed in the United States, how far matters of maritime intelligence inserted in the public papers, and open to all the world, need Quare, whether be stated; the conclusion derivable from the cases there matters of maridecided, upon the whole, appears to be, that such articles of gence contained intelligence need not be stated, unless they apply peculiarly to the case of the assured, or unless he is privately in possession of information which may enable him to infer, with more certainty than the rest of the public, that the intelligence in the journals is, in fact, material to the risk: except in cases of this kind, the underwriters are presumed to be informed of the ordinary marine intelligence appearing in the gazettes, and if they wish for more explicit information must make inquiry of the assured. (v) be in the knowledge of the underwriter as to dispense with their communi cation by the assured. In the United States it has been decided contained in Where the facts complained of as not communicated are comprised under the head of marine intelligence, in papers that they are, if actually and habitually taken in and filed by the underwriters, or the company with whom the insurance is effected, it has been held in the United States that the non-communication of such facts by the assured will not, even though journals ha bitually taken in and filed by the underwriters. (t) Mackintosh v. Marshall, 11 M. Elton v. Larkins is quite reconcileable & W. 116. with this principle. (u) Lynch v. Durnsford, 14 East, 494. Quare, whether the decision in (v) Kent's Comm., vol. iii. p. 285. ed. 1844. 1 Phillips, 254-257. or presumed to within the material, avoid the policy. (w) In such cases it seems a fair Matters lying, presumption, that the underwriters "have examined with lie, as much some care the items of marine intelligence, which are expressly designed speedily to diffuse information on a subject so immediately interesting to them, especially in relation to vessels belonging to their own port." (x) The point, however, cannot perhaps be considered as finally settled in the United States (y), and is less likely to arise in this country, where the great majority of insurance business is effected by those who have the means of access to the shipping lists at Lloyd's. the It appears certain, however, that the assured is not bound to communicate mere items of general news stated in public papers, which are as open to the underwriters as himself, and which, though they may excite fears, are general to lead to any particular application to the insured. (z) knowledge of the underwriter sured, need not as of the as be disclosed. In this country never been decided. the point has Mere items of general news not having any particular ap plication to the risk need not too be communi risk cated. SECT. V. Nothing need be disclosed which the Underwriter impliedly waives being informed of. be disclosed which the underwriter impliedly waives being informed of. § 210. Another principle laid down by Lord Mansfield in Nothing need the celebrated judgment already cited, is, that nothing need be disclosed to the underwriter which he himself waives being informed of. Thus, to take the illustration given by his lordship in the same case: "If the insurance be on a private ship of war, from port to port, the underwriter needs not to be told of the secret enterprises it is destined upon; for, from the nature of the contract, he waives this information." (a) Upon the same principle, when the underwriter insures a Nor, in insur (w) † Greene v. Merchants' Ins. Comp., 10 Pickering's Mass. Rep. 402. (x) Per Chief J. Shaw, ibid. (y) See † Dickenson v. Commercial Ins. Comp. of New York, Anthon's N. Pr. C. 92. 1 Phillips, 254. seems (z) † Alsop v. Com. Ins. Comp., In insurance on a private ship of war, her secret destina tion need not be disclosed. ance on ship be disclosed which the un of. Nothing need ship for a homeward voyage, "at and from" a foreign p the very form of the contract shows that the ship, in all derwriter im- probability, on arriving at the foreign port, will require pliedly waives being informed repairs before she can sail on her homeward voyage; the fact, therefore, that she is in such a state of damage at the outport as to require to be detained there for repairs, beyond the time of her loading, need not be communicated to the underwriter, who, if he wishes for particular information on the point, ought to ask for it. (b) for a homeward voyage, her being so damaged at the outport as to require to be detained there for repairs. Nor need the fact be disclosed that a ship in sured "at and from a foreign port is not ac tually at that port when insured. 14 East, 477. So, where a ship is insured "at and from " her home port, "lost or not lost," it is not necessary to disclose that she has, in fact, sailed before the policy is effected; for, if the underwriters want to be satisfied as to this point, they ought to inquire into it. (c) So, where it appeared that a policy had been effected on a ship, "at and from Heligoland to a port or ports of discharge in the Baltic," on the 13th of August; at which time the ship was lying in the Thames, whence she did not depart till the 27th for Heligoland, in ballast; on arriving at which Hall v. Cooper, place she took in her loading for the Baltic, and sailed on the voyage insured; it was contended, that this delay ought to have been communicated to the underwriter: the jury, however, found for the plaintiff, and, on motion for a new trial, Lord Ellenbourgh said, that the terms of a policy, "at and from," had never been understood necessarily to import that the ship was at the place at the very time, so as to make the assured guilty of deception if she were not; - that it was a question for the jury whether the intervening period between the 13th of August, when the policy was effected and her arrival at Heligoland, had in this instance varied the risk; and that, as they thought it had not, and had accordingly found for the plaintiff, he would not disturb their verdict. (d) On the same principle it is, that as there is in every policy an implied warranty of seaworthiness, the assured need not, in the first instance, disclose any fact, however material to On the same principle, the assured need not, in the first instance, disclose facts (b) Beckwith v. Sydebotham, 1 Camp. 115. (c) Fort v. Lee, 3 Taunt. 381. the risk, which tends to show that the ship was unseaworthy when she sailed. The underwriter waives his right to a spontaneous disclosure of facts, which, whether disclosed or not, will exempt him from his liability, as being a breach of this implied warranty. Hence, where, in an action on a policy "at and from Madeira to Charleston," it appeared that the captain had written two letters from Madeira to the owner, stating that the ship had been very leaky on her voyage thither, Lord Mansfield told the jury that there was no necessity to communicate these letters to the underwriter. "It is true," his lordship said, "that there should be a representation of everything relating to the risk which the underwriter has to run, except it be covered by a warranty. But it is a condition, or implied warranty, in every policy, that the ship is seaworthy, and therefore there is no necessity for a representation of that. If she sail without being seaworthy the policy is void." (e) So where the owners of a ship insured "at and from Trinidad to London," &c., had received from the captain a letter, just before effecting the policy, informing them that he had been obliged to have a survey on the ship at Trinidad " on account of her bad character;" but the survey which accompanied the letter gave the ship a good character: it was held, that the non-disclosure of this letter and survey to the underwriters did not vacate the policy; though it appeared in evidence, that such circumstance, if known, would have enhanced the premium. (ƒ) If, indeed, the underwriter particularly calls for information on the subject, then the assured must disclose truly all that he knows in the respect required. The principles upon which this doctrine rests are thus clearly and admirably stated in Lord Ellenborough's judgment in the case of Haywood v. Rogers: "It certainly," said his lordship, "would have some weight in guiding the judgment of the underwriter, to know how old the ship was; (e) Shoolbred v. Nutt, Marsh. Ins. 474. Park on Ins. 493. 8th ed. (f) Haywood v. Rogers, 4 East, 590. - See also Beckwith v. Sydebotham, 1 |