Commercial Code provides in § 789 that "the validity of the insurance contract is not affected by the question whether at the time of its conclusion there is no longer any possibility of a claim occurring for damage, or whether claimable damage has already occurred. The contract, however, is invalid as an insurance contract if both contracting parties were aware of the position of affairs. If the underwriter alone was aware that the possibility of a claimable damage no longer existed, or if the assured alone was aware that claimable damage had already occurred, the contract is not binding upon the party to whom the position of affairs was not known. In the second case, the underwriter is entitled to the full premium, even when he establishes the invalidity of the contract." The important point of difference between English and German law is in the treatment of cases in which both parties are aware that the risk has either run off or resulted in some disaster; English law upholds the contract, German law annuls it. Insurances lost or not lost are expressly permitted by the Commercial Codes of Holland, Spain, and Portugal. At and From In the blank following these words is inserted the description of the voyage intended to be insured. The formula at and from is one of considerable antiquity in England, and was adopted in the statutory form of policy for private underwriters appended to the Act of Parliament of 1795 (30 Geo. III. c. 63): its very existence implies that it is intended to include more than would be covered by the word from. Phillips (927) distinguishes as follows: "Under a policy on a vessel against sea perils 'at' a place as distinct from a voyage, the risk commences when the vessel is at the place in reasonable safety and on the goods from the time of their being exposed to sea perils within the conditions of the policy in respect of the vehicle and custody in which they are." : Arnould (p. 23) completes the distinction thus: "An insurance expressed in the policy to be from A to B only protects the subject insured from the moment of the ship's sailing from A: an insurance AT and from protects the subject insured from the first moment of the ship's arrival at A, and during her whole stay there." This seems too wide an extension, unless it is understood that the subject insured is the ship herself or something on board her when she arrives at A. The formula at and from was likely first devised to meet the case of goods laden abroad on a homeward voyage, but being perfectly adaptable to any kind of risk or voyage became part of the general form of policy. The voyage for which any subject is insured is described by the mention of its starting and finishing points, known technically as the terminus a quo and the terminus ad quem. It is notorious that the course of the passage between two named points may not be and ordinarily is not exactly the same in any two cases. But there is in every case a customary manner in which the passage is made; e.g. the customary passage which a steamer makes from the United Kingdom to Calcutta, or vice versa, is through the Suez Canal, the customary passage of a sailer between the same points being round the Cape of Good Hope. The course at sea of a vessel, especially of a sailing vessel, necessarily varies in accordance with season, weather, political circumstances, disposition of hostile forces, etc., so that the description of the voyage insured must be regarded as compatible with such necessary variation. Consequently the law considers the voyage insured (viaggium, from the more classical viaticum) named in the policy to be a course at sea from the starting point (terminus a quo) to the finishing point (terminus ad quem) in a course of navigation prescribed by custom (iter viaggii) with which the passage of the ship (iter navis) must correspond. Speaking generally, the course at sea between any two ports is ordinarily the sea-path over which the one can be reached from the other in the shortest time consistent with the safety and ordinary convenience of the things and persons involved in the venture, the special (Motteux v. London Assurance, 1739). Similarly, for goods, the object of loading them on the vessel being their conveyance to the other terminus of the voyage, the vessel must not be regarded as nothing more than a mere floating warehouse; she is not that, but a vehicle or transport whose essential function is to carry from one port to another. In Hamilton v. Shedden, 1837,2 where a vessel engaged in the palm oil trade, with permission to act as a tender to other vessels in the same employ, was detained over twelve months in the Benin River, the delay was held to be unreasonable. Thus, whenever delay is unreasonable in length, or is due to causes not connected with the completion of the voyage, it is held to alter the voyage in a way not in the contemplation of the underwriter; just as much as if after starting on the voyage the vessel turned aside, intending all the time to complete the voyage after doing something else; the delay and the turning aside are both classed as deviations. Similarly, in the course of the whole voyage due diligence to complete the venture must be observed. Undue delay on the voyage, and more particularly at port of call and before discharge at port of discharge, will alter the character of the voyage as respects both ship and cargo. A closer definition of the beginning and end of the venture as respects ship as well as goods occurs later in the policy and will be discussed in its proper place. Meanwhile there is no doubt that the policy was originally intended to cover only marine risks; all additions and adaptations intended to extend its operation to cover land risks are essentially modern, and do some sort of violence to the general sense of the document. But the reasonable wants of business have had to be met. An inland manufacturer's goods practically pass from his control when once they are loaded on the railway trucks at his siding; a merchant's, when they are passed over to the railway or other carrier. On the Continent of Europe where railway, canal, lake, and river transit form by far the most important part of the carrying done, the wants of the merchant have I Atk. 545. 2 3 M. & W. 49. 1 Lord circumstances of each case being fairly considered. Mansfield speaks (Thellusson v. Staples, 17801) of proceeding "to her port of delivery in a mathematical line, if it were possible." In case of insurances from a port, and of such as have their commencement determined by the time of sailing from a port, it becomes important to determine exactly what constitutes such sailing. In giving the Privy Council's decision of a case arising out of the collision of the City of Cambridge, and the Birmah, 1874,2 the bench cited with approval the following from Chief Baron Pollock's judgment in Rodriguez v. Melhuish, 1854:3 “If the vessel had all her cargo on board, and the master ready to get on board, and she had everything ready to commence her voyage forthwith, and left her berth with that intention, it might no doubt be said she was proceeding to sea from the time she first left her berth." It seems safe to deduce from this that if any one of these named preliminaries were not completed, or if the intention on leaving the berth were other than that of commencing the voyage forthwith, then the vessel would not be "proceeding to sea " in the strict sense of these words. The moment of the commencement of an at and from risk under a homeward policy on ship from a foreign port has been determined by the decision in Haughton v. Empire Marine Insurance Company, 1866.4 The insurance ran “at and from Havana to Greenock." The vessel arrived on her outward voyage within the headlands of the port of Havana, and was towed under the direction of a pilot by a steam tug up the harbour to an anchorage. Before she had cast anchor, she settled down on the anchor of another ship and sustained serious damage. Next day she was towed off, taken to another part of the harbour, and discharged. The underwriters on the homeward voyage contended that their policy had not attached when the accident occurred. The court held that it had attached, on the ground that the vessel was plainly at the place ordinarily 2 L.R. 5 P.C. 451. 4 L. R. I Ex. 206. 1 I Dougl. 366. |