under deck. As regards the former point, Lord Mansfield in Glover v. Black, 1763,1 decided that when a ship and cargo were lost by fire, the plaintiff having lent the captain cash, for which a respondentia bond 2 in common form was given, could not recover the amount of the loan upon a policy on goods. Lord Mansfield based his decision solely on practice; his words were: "In practice bottomry and respondentia have always been considered as a particular species of insurance, and have taken a particular denomination. . . . The ground of our determination is that by the custom of merchants, respondentia is insured under a special denomination. But we by no means say that under an insurance on goods at large a man may not be permitted to give in evidence a mortgage or other special lien."

On the second point, as long as maritime custom has determined that the proper place to carry goods and merchandises is under deck, it results that wares insured in these general terms are taken to be so laden. Consequently, even in cases where the custom of trade permits the carriage of deck loads, articles insured merely as goods or merchandise, or in such terms that their nature is not disclosed, are taken to be laden under deck, unless special mention is made to the contrary. The effect of such special mention is that the underwriter is warned of the special perils of the venture in question 3 (see Gould v. Oliver, 1840;4 Lord Lyndhurst in Blackett v. Royal Exchange, 1832).5

Further, the words "goods and merchandises" plainly denote such material objects as are bought and sold in trade and are conveyed from one port to another for the

1 3 Burr. 1394.

2 A bond pledging cargo for the repayment on arrival at destination of money borrowed at an intermediate port in emergency, the money not being repayable in case of loss of the venture; the rate of interest charged is always high.

3 On the other hand the mere description of the wares insured has been held to be sufficient notice to the underwriter that they are carried on deck; for instance, in an insurance on carboys of vitriol it was held to be sufficient that they were carefully stowed on deck; this being the usual place for this article there was no need to inform the underwriter (Da Costa v. Edmonds, 1815).

4 4 Bing. N. C. 134; 2 M. & G. 208.

5 2 C. & J. 250.

purposes of trade. They do not therefore include effects of the master or spare outfit of the ship. These interests should be defined by name; so also should live stock and their feed.

There seems to be now no reason to doubt that even valuables such as gold and silver specie may be insured under the general words "goods or merchandises." But such valuable documents as bonds and titles appear to be of an essentially different character; there is in the material of which they consist no intrinsic value corresponding to that present in gold and silver. In Glover v. Black, 1763,1 Lord Mansfield had in view, when he spoke of mortgage or other special lien, some security of that character affecting objects exposed to marine perils in the venture named.

Cargo on board a vessel is not covered by a policy on the vessel, even though the cargo may be of the same nature as part of the apparel or other furniture of the ship. For instance, if a ship carries as part of its cargo a shipment of ropes and cables belonging to the shipowner, and intended to be used eventually as rigging, a loss of these could not be claimed on the ground that they were part of the ship's tackle; and this even though in case of uncontrollable circumstances (vis major, force majeure, höhere Gewalt) they might have been used to supplement or replace the ship's stores.

(b) The ship is described in terms more appropriate to the fleets of last century than to the trading transports of to-day. Nothing is to be made of a consideration of what each separate word of the description was intended to cover. Phillips (463) interprets the purport of the clause thus:-"It is well settled that a policy for a commercial voyage on a vessel generally, without any further specification, covers not only the body, but also the rigging, sails, tackle, boat, armament, and provisions, and all the appurtenances necessary, suitable, or usual, and that may be presumed to belong to a vessel of such description, for the purposes of navigation on a voyage such as that Burr. 1394.

1

3

described." This exposition is more immediately applicable to sailing vessels than to steamers, and even in the case of sailers, special exception must be made of fishing vessels. But if for "rigging, sails," we read "engines, boilers, shafting, fuel," the rest of the description will answer all wants. It is to be understood that of the "appurtenances necessary, suitable, or usual," only those which are permanent are to be considered part of the ship, temporary fittings being classed with such articles as sand ballast and dunnage wood and not regarded as being part of the structure of the vessel.

In the case of fishing craft, the decision in Hoskins v. Pickersgill, 1783,1 was that "by the usage of trade the meaning of the word furniture did not include fishing stores, in the construction applied to a policy of insurance."

On the wording of this clause in the policy the most important decision is that in Blackett v. Royal Exchange, 1832.2 In this case Lord Lyndhurst refused to admit evidence of a usage or custom that underwriters never paid for boats slung on the quarter outside the ship. He held that as the boat was included nominatim in the policy he ought not to admit evidence at direct variance with the terms of the policy and in plain opposition to the language it used.

The phrase "ship or vessel" is employed to get over a somewhat technical difficulty. The English language possesses no word equivalent to the French navire, German Fahrzeug, Scandinavian Fartyg, meaning any seagoing carrying craft: the English vessel has a wider sense, being applicable to any moveable hollow structure capable of containing solids, fluids, or gases. The word ship had therefore to be brought in; but it is much too definite, being the technical name of a square-rigged three-master. If transport were not exclusively used in a specially limited sense it would be suitable for this place; craft would be better still, if it were not generally used to designate smaller boats.

The phrase "good ship or vessel" is common to 2 2 C. & J. 250.

1 3 Dougl. 222.

charter-parties, bills of lading, and policies of marine insurance. The charter-party after thus describing the vessel proceeds to speak of her being "tight, staunch, strong, and in every way fitted for the voyage." Without reading every detail of this into the word good as used in the policy, one may still say that good is more than merely ornamental: it is the mark of the underwriter's exemption from liability for risks on notoriously unfit vessels, the index of what is known technically as the warranty of seaworthiness.

or

Whereof is master, under God, for this present voyage whosoever else shall go for master in the said ship, or by whatsoever other name or names the same ship, or the master thereof, is or shall be named or called.

As there are many craft of one and the same name, the policy provides for more minute definition by stating, or giving the chance of stating, the master's name. This is a rough expedient, probably the only one possible at a time before the existence of official signals and registry numbers. The two leading cases connected with the misnaming of a ship are Le Mesurier v. Vaughan, 1805,1 in which a broker instructed to insure goods on board "The President" and to describe her as an American ship, actually did insure goods on board "the American ship President," the variation was held to be of no moment, the identity of the ship being proved; and Hall v. Molyneux, 1744,2 in which the Leopard was insured in error instead of the Leonard and the variation again was held to be of no moment, the identity of the vessel being proved by the master's name.

The provision for naming the master is common to most European policies, but except the English policy none states so fully the apparently contradictory clause "or whosoever else shall go for master." Marshall, in 1823, writes (p. 322): "The name of the master also should be specified, because his character and ability are material subjects of consideration in estimating the risk." But if the 2 Ibid. 385.

16 East 382.

fact of the master being one particular man -say one specially acquainted with the trade or voyage in which the vessel is engaged-influences an underwriter's estimate of a risk, it is hardly reasonable to follow the clause naming this master by one dispensing with him. It seems more reasonable to view the clause as merely one of further definition of the ship, be her name and her master's name what they may. As a matter of modern practice, not one policy in ten thousand contains the master's name, consequently special mention of a master nowadays has a much greater significance than it had say sixty years ago. It is therefore likely that the mention of a particular master having charge of a vessel on a named voyage would be binding on the assured in spite of the second part of the clause, unless the substitution of a new master after the completion of an insurance arises from such unavoidable causes as incapacity of the original master through sickness or his resignation after commencement of the venture. As Marshall says the shipowner must not change the master "wantonly or unnecessarily ; much less ought he to name one when he means to employ another" (p. 323).

Beginning the adventure upon the said goods and merchandises from the loading thereof aboard the said ship, as above . . . upon the said ship, etc., as above . . . and shall so continue and endure during her abode there, upon the said ship, etc.; and further, until the said ship, with all her ordnance, tackle, apparel, etc., and goods and merchandises whatsoever, shall be arrived at, as above. upon the said ship, etc., until she hath moored at anchor in good safety, and upon the goods and merchandises until the same be there discharged and safely landed.

This section of the policy is by no means clear in its construction; it is unsatisfactory in its arrangement whatever way it be read. It contains a description of the commencement of the risk mentioning first goods and then ship; it proceeds with an account of the continuation of the risk at the point of its commencement without making any separate mention of ship or goods; it ends with a definition of the close of the risk, dealing first with ship and then with goods.