Upon any kind of goods dises." evident uncertainty which would follow from a contrary practice, as the assured would never know what the risk was which he had undertaken to insure." Molloy has laid down this doctrine that, "if a ship be insured from London to a blank being left in the policy, by the lader of the goods, to prevent a surprise by an enemy, and if, in her voyage, she happen to be cast away—though there be private instructions for her port-yet the assured must sit down with his loss, by reason of the uncertainty." He cites the case of Monsieur Gourdan, governor of Calais, which was decided, by the commissioners of assurance at Rouen, against the assured; because, although the bills of lading truly declared the quantity and quality of the goods, the port of the ship's discharge was left blank, on account of the war which was then existing (a). Such, also, is now the law and usage of merchants (b). SECTION IV. "UPON ANY KIND OF GOODS AND MERCHANDISES." The above words will lead us into the inquiry as to what and merchan- description of "goods and merchandises" may form the subject of marine insurances when laden on ships. Magens (c), in his enumeration, includes the freight or hire of ships under these words. This, however, as well as others which we shall see are capable of being the subject-matter of the insurance, can scarcely be said to come under the terms "goods and merchandises," unless "goods" are intended to include all descriptions of "chattels personal;" and it is usual to specify some kinds of the property to be insured by their proper names, for in many instances the risk, and, of course, the premium, would be greater. Horses, and other live and valuable animals, which would probably come under the denomination of "goods" in the policy, are, however, generally declared to be such kind of goods somewhere in the policy. (b) Park, 31. (c) Magens, 4. (a) Molloy, b. 2, c. 7, s. 14. We will now commence stating some of the particular kinds of things or property which are not by law, or rather by the use of merchants, considered to come under the general term of "goods," and not to be included by them. Thus bot- Bottomry and respondentia tomry and respondentia, which are peculiar kinds of property, bonds. may be the subject of marine insurance, but in the policy it must be particularly stated to be respondentia interest; for it has very long been decided by a case of Glover v. Black (a), that, on a general policy "on goods," the assured cannot recover money lent on bottomry." The action was upon a policy of insurance "on goods and merchandises" loaden, or to be loaden, aboard the Denham, W. Tryon, commander, at and from Bengal to any parts or places in the East Indies, until her safe arrival in London. The evidence was, that, before the signing of the policy, the plaintiff had lent Captain Tryon, upon the goods then loaden, or to be loaden, on board the said ship, on account of the said Captain Tryon, the sum of £764, at respondentia, for which a bond was executed in the usual form; that the ship, at the time of the loss, had goods and merchandises on board, the property of Captain Tryon, of greater value than all the money he had borrowed; that the ship was afterwards burnt, and all the goods and merchandise were totally consumed and lost. Upon these facts the question was, whether the plaintiff could recover? This case was argued at the Bar; the Court took time to consider it, and were unanimous in their determination. Lord Mansfield." I inclined at the trial, and since upon the argument, to support this insurance, being convinced that it is fair, and that the doubt has arisen by a slip, in omitting to specify (as it was intended to have been done) that this was a respondentia interest. The ground of supporting this insurance, if it could have been supported, was a clause in the 19 Geo. 2, c. 37, s. 5, which, as to the purpose of insurance, considers the borrower as having a right to insure only for the surplus value, over and above the money he has borrowed at respondentia. Yet we are all satisfied that this act (a) 3 Burr. 1394; 1 Black. 405. of Parliament never meant or intended to make any alteration in the manner of insurances: its view was, to prevent gaming or wagering policies, where the assurer had no interest at all; and if the lender of money at respondentia were to be at liberty to insure for more than his own interest, it would be a gaming policy; for it is obvious that, if he could insure all the goods and his respondentia interest besides, this would amount to an insurance more than his whole interest. In describing respondentia interest, the act gives the lender alone a right to make insurance on the money lent: so that the act left it on the practice. I have looked into the practice, and I find that bottomry and respondentia are a parti cular species of insurance in themselves, and have taken a particular denomination. I cannot find even a dictum in any writer, foreign or domestic, that the respondentia creditor may insure upon the goods, as goods. I find, too, by talking with intelligent persons, very conversant in the knowledge and practice of insurances, that they always do mention respondentia interest when they mean to insure it. It might be greatly inconvenient to introduce a practice contrary to general usage, and there may be some opening to fraud, if it be not specified. The ground of our resolution is, 'That it is now established, as the law and practice of merchants, that respondentia and bottomry must be specified and mentioned in the policy of insurance." A bottomry bond usually expresses on the face of it, that the lender takes upon himself the perils of the voyage: but it is not necessary that this should be express and in terms; it is sufficient if the fact can be collected from the language of the instrument, considered in all its parts, and therefore a declaration in an action of insurance declared on a bottomry bond, is supported by an instrument of such description. This was held in the case of Simonds v. Hodgson (in error from the Common Pleas). (a) Lord Tenterden, C. J., in delivering the judgment, said, "This case came before us by (a) 3 B. & Ad. 50. See also the full report of the judgment, p. 56, and see the form of the bond at p. 51. writ of error from the Court of Common Pleas, wherein upon a demurrer to the declaration, judgment was given for the defendant. The declaration was upon a policy of insurance in the common form, declared to be on 'bottomry,' free from average, and without benefit of salvage. The declaration sets forth the instrument of bottomry, with proper averments to connect that with the policy. Upon the argument before us it was insisted in behalf of the plaintiffs, that the instrument set out in the declaration, was an instrument of bottomry, in the proper and legal sense of that word, in which the lender takes upon himself the risk of the voyage.' On this point we are all satisfied that the judgment ought to be for the plaintiffs." But it does not, therefore, follow that "special interests" in "goods" may not be recovered under the common form of an insurance upon "goods:" and Lord Mansfield himself, at the end of his judgment in Glover v. Black, expressly reserves both himself and the Court from having laid down such a general rule (a). We have seen that according to 28 Geo. 3, c. 56, not only the persons who are interested in the assurance in "goods," but likewise the consignor or consignee, may declare on such a policy on goods, without stating their character in the policy" And see the case of Wolff v. Horncastle (b), to which we have already referred at some length (c.) And generally it is necessary to state accurately" the subject-matter" of the insurance, but it is not essential to state the "particular interest" which the assured has in it. Thus, a person who has several interests in a cargo, viz, as partner in seven-sixteenths, as consignee of the whole; and as having a lien as factor on the whole for advances: may protect them all by one insurance, without stating in the policy the number or nature of his interests (d). In the recent case of Crowley v. Cohen (e), which was an action on a policy of insurance on "goods" made by carriers ; (a) 3 Burr. 1401. (c) Ante, p. 4. (d) Carruthers v. Sheddon, 6 Taunt. 14. (e) 3 B. & Ad. 478. Generally, it is state accurately the subject-mat necessary to ter of the insu rance, but it is not essential to state the interest which the as sured has in it. An interest in expenses in curred by the captain for the use of a ship, for which he charged re terest, was held to be protected it was objected for the defendants that the policy which pursued the ordinary form, did not cover the interest of the plaintiffs, since it purported to protect goods against the usual risks to which the owners of goods are liable; whereas, the loss alleged was one arising out of the plaintiff's liability as carriers, to risks to which carriers are liable. Lord Tenterden.-"It is objected that this policy is not framed so as to cover the interest' in respect of which the` plaintiffs claim. But I agree in the proposition laid down in the argument on their side, that although the subjectmatter of the insurance must be properly described, the nature of the interest may in general be left at large. Here the subject-matter is very sufficiently described, and the policy shows that the sum to be received in case of loss, was to be for further consideration, as interest might appear to be hereafter.' The instrument is not artificially framed-it would have been better if it had expressly shown that the object was to indemnify the plaintiffs as carriers, still I think it is sufficient (a). And in the case of Lècras v. Hughes, (b) Lord Mansfield says, 'insurance is a contract of indemnity,” some interest is necessary, but not any 'particular form of interest;' it does not depend upon a vested formal interest." Although the decision in Glover v. Black has been always upheld, yet in a subsequent case before Lord Mansfield, of Gregory v. Christie (c), it was ruled that money expended by the captain for the use of the ship, and for which responspondentia in dentia interest was charged, might be recovered under an insurance on "goods, specie, and effects," provided the usage of the trade, which in matters of insurance is always of great weight, sanctions it. This case was an action upon a policy of insurance on "goods, specie, and effects" of the plaintiff, board the ship, who was also the captain, on board the ship: the plaintiff claimed under that insurance, money expended by him in the course of the voyage for the use of the ship, and for which by a policy "on goods, specie and effects" of the captain on on the ground solely of the usage of the India trade. (a) See Palmer v. Pratt, 2 Bing. 185. (b) Park Ins. 569. (c) B. R. Trin. 24 Geo. 3. Park Ins. 10. |