Imágenes de páginas
PDF
EPUB

this risk on his own shoulders he is entitled to pass it on to another person by insurance, namely to an underwriter. Similarly, in the case of a wharfinger or any other bailee of goods. If a salvor working under contract with a shipowner or shipmaster, acting on behalf of all concerned in a wrecked venture, is asked to remove salved goods to some market for sale, it is usual and proper that these goods should be insured, unless the owners or underwriters of certain parcels or shipments declare that they do not want them insured against this risk of removal. Similarly, if a salvor has incurred certain expenses for which he is responsible to third parties, in saving goods and forwarding them to a proper place for sale or reshipment, he is entitled to insure at least his out-of-pocket disbursements incurred in the operation of salving. If a shipmaster, acting as agent for all concerned in any venture, finds it necessary to tranship cargo from his own vessel to another for conveyance to destination, he is entitled to insure the cargo for the part of the voyage to be performed in the other vessel if the original bill of lading does not give permission for such transhipment.

(b) Relations of risk. Ownership of goods when they are exposed to sea perils evidently constitutes an insurable interest of the most unmistakable kind. But as soon and in so far as the property passes from seller to buyer so does the insurable interest of the seller cease, and he cannot transfer to the buyer the interest in any insurance he has effected unless such transfer is specially contained in the contract of sale (North of England Oil Cake Company v. Arch

1 But, however this underwriter may word his policy, he can never be called to make good any loss or damage proceeding from the Act of God or of the Queen's enemies, because the lighterman being never damnified by either of these causes can never be in need of indemnity against their effects, and is not entitled to claim indemnity from his underwriter on behalf of a third party.

angel Marine Insurance Company, 1875). Similarly a seller who contracts, for example, to deliver goods free on board ship, cannot obtain protection from a buyer's policy even should it cover the risk of transit from shore to ship; the buyer having no pecuniary interest in the goods at that time has no claim for indemnity which he can transfer to the seller, as it was not possible that he should be damnified at the period when the goods were at the seller's risk. Similarly, if a consignee of goods has made an advance against their value he is entitled to protect himself by insurance against the risk of the loss of his advance which might result from the loss of the goods (Hill v. Secretan, 1798).2 Lowndes (Law of M. I. p. 9, note) quotes the rule given by Mr. Justice Willes in Seagrave v. Union Marine, 1866.3 “The general rule is clear, that to constitute interest insurable against a peril it must be an interest such that the peril would by its proximate effect cause damage to the assured.” If, therefore, the consignee has no other concern in the goods than merely getting possession on behalf of the owners, whether shippers or consignees, then he is not damnified by the loss of the goods at sea, and consequently can never have the need of indemnity against that loss (except perhaps the amount of the commissions which he would certainly secure for the handling of the goods if they did arrive at destination). Further, in the case of a wrecked venture, if a salvor has contracted for payment in a lump sum or in a stated percentage of the value of salved goods payable when they reach a place selected for sale or reshipment, he is evidently pecuniarily concerned in the safe arrival of the goods at that place, and is consequently entitled to insure his interest in them.

It is to be noted that in the case of goods transferred in whole or in part of their value from 1 L.R. 10 Q.B. 249. 2 1 B. & P. 315.

3 3 L. R. 1 C. P. 320.

one party to another, the total amount insured by all the parties should not exceed the full value of the goods. But this limitation evidently does not extend to the case of any subsequent interest arising, like that of the salvor just mentioned, out of the consequences of a sea peril. The original relations of buyer, seller, and their underwriters are not mixed up with those of the salvor and his underwriter.

B. Ship. The owner of the whole of a ship is obviously entitled under Mr. Justice Lawrence's dictum to insure his property; and it was decided by Lord Ellenborough in French v. Backhouse,1 1771, that the owner of a share or shares in a ship is entitled to insure his share or shares. "Each separate share in the ship is the distinct property of each individual part owner, whose business it is to protect it by insurance, so that the insurance of another cannot be binding on such proprietors without some evidence importing an authority by them." Consequently without precedent authority or subsequent ratification, no insurance effected by a part owner or managing owner on the shares belonging to other part owners is binding on them. In the case of ship companies or single-ship companies there is usually a clause in the Articles of Association and/or the resolution appointing the managers, conferring on them the authority to effect insurances, and in some cases stipulating that the amount insured shall not fall below a named amount. Where it is not very inconvenient and unworkable it is most desirable that the insurances on a ship should all be effected by one person, or at least all on the same conditions, especially of valuation. The confusion, annoyance, and disappointment arising from variation of valuation in the policies of part owners are incredible.

(a) Relations of responsibility.

[blocks in formation]

The plainest

case is that of a charterer who hires a vessel from her owner, agreeing to return her to her owner at the end of the time for which she is hired; the charterer having the use of the vessel at his own risk. He is entitled to insure the vessel as he is pro tempore in the position of owner, being absolutely responsible to the owner for the property hired. In such an arrangement a value will probably be mentioned in the charter, and it would be expected to be only for the excess of the vessel's whole worth to the owner beyond the amount stated in the charter that the real owner has an insurable interest but this is not so.1 Captors of a vessel incur certain responsibilites to pay costs and charges in case the vessel turns out to have been improperly taken as a prize: they have therefore a proper insurable interest (Boehm v. Bell, 1799).2 Similarly, a shipmaster moving his ship for repairs to a port other than the nearest convenient port becomes responsible for the safety of the ship, and is therefore entitled to insure her value. If a ship's agent at destination is instructed to sell the vessel and can only do so on condition of delivering her at another port before obtaining the purchase money, he is evidently entitled to insure the vessel for at least the price agreed; so that if the vessel is lost her owners are placed in as good a position as if the vessel had been sold and delivered at original destination.

(b) Relations of risk. An insurable interest exists in any case in which the ship herself is the security upon which money has been lent: such is the

The ground given is that the owner is not bound to trust exclusively to the credit of the charterer, but may likewise protect himself by a policy of insurance (Hobbs v. Hannam, 3 Camp. 93). But if in case of a loss both owner and charterer recovered and the latter remained solvent and paid the owner the value of the ship, surely the matter would be treated as a case of double insurance; see Godin v. London Assurance, 1758 (1 Burr. 489).

2 8 T. R. 154.

interest of a mortgagee. The mortgagee need not specify the nature of his interest, he can recover on an ordinary policy on the ship (Irving v. Richardson, 1831).1 A mortgagee is not entitled to insure more than the sum he has advanced, unless the excess of this amount is insured on account of the mortgagor. The position of the mortgagor is different he is entitled to insure his ship for her full value; for although in case of her loss the security of the mortgagee is gone, the mortgagor is still liable for the debt. (Arnould, p. 307, citing Allston v. Campbell, 1779.)2 But what if the mortgagor is a single ship company with liability limited and capital fully paid up? The assets of the company may consist of the ship herself and nothing more. If the vessel in such a case be lost, can the mortgagee claim the benefit of the company's insurances, and by instituting legal proceedings (say in bankruptcy), get the policies included among the assets of the company?

C. Advances. The most general form in which this interest nowadays presents itself is that of general average expenses. A vessel meets with some accident in her voyage which compels her to return to her sailing port or put into an intermediate port of refuge while she is there certain expenses are incurred which are paid by the ship's agent on behalf of all interests. But these expenses are payable by ship cargo and freight in certain proportions, to be determined at the close of the venture and at the destination. There is therefore an insurable interest for the payer of these expenses from the port of refuge to the destination.

In former times the most ordinary form of advance was the bottomry bond. When a captain found himself unable to defray his expenses in a foreign port and could raise no money on his own 1 I Mood. & Rob. 153; 2 B. & Ad. 193.

2 4 Brown's P.C. 476.

« AnteriorContinuar »