no possibility of the underwriter's gaining the premium-and if the consideration fail, the obligation fails." At the same time it is to be borne in mind, for the encouragement and satisfaction of the assured, that all the law requires of them is to perform their part of the contract strictly, as to the implied warranty, which they have, previous to the voyage, the power in their own hands to do, if they choose; the law then exempts them from any further responsibility, whatever may happen, because there was a bond fide contract made by the assured, and the law will not be too captious in the event of loss, to find reasons for discharging the assurers from paying to the insured an indemnity for their loss. But there still remains a further subject for our considera- Changing the tion on this head of " the good ship, &c.," without which it ship. would not be possible to leave it in a complete state of illustration. The remaining part of the subject relating peculiarly to the "ship," to which I allude, is that which treats of the law respecting the "changing of the ship," which is an additional duty cast upon the assured, which has not yet been touched upon. It was stated at the beginning of this section that in order to make the insurance effectual, it was essential that the name of the ship should be stated in the policy, and that with the exception of a case or two where the ship had been named by mistake, and the identity proved, it was held to be sufficient: and although the policy contains these words, "or by what other name or names the ship may be called," and that in some special cases insurances have been held to be good, and no doubt are when made upon "ship or ships" coming from and expected to arrive at a certain port. This being so, generally speaking, the assured cannot The assured substitute another vessel for the one named in the policy at the time of making the insurance, for the underwriter by such change has lost the advantage of ascertaining the character of the ship substituted for the one first offered to him, to underwrite, and has had no opportunity to exercise insurance. his judgment respecting it, as well as the premium he shall expect to receive; and if another were to start on the voyage cannot substitute another ship for the one originally mentioned and named without voiding the different to the one he understood to be the subject of the insurance, this alters in toto his speculation about the insurance, and consequently he will not, by law, be bound by his contract, which is now invalid: inasmuch it relates to a different matter to which he had agreed, because the contract he entered into with the assured was for the protection of certain "goods" on board a particular ship, or on "the particular ship itself," and it is clear that he cannot, in case of a loss arising, be held to his contract, which has without his knowledge or consent been entirely made a different one to that which he had underwrote. This reasoning, as a general theory, seems to admit of no doubt whatever, applying as it is supposed to the change of the vessel before the commencement of the voyage. But whether in the case of a transhipment rendered absolutely necessary in the course of the voyage, and made by the master in due and proper execution of his duty, the underwriter shall be considered as still continuing liable, and whether likewise for extra expenses attending the transhipment as an increase of freight, does not appear to have met with any express decision by the The shipowner Courts in this country, though by the regulations of other is bound by his countries the question appears to have been settled. It is certain that by the contract between the shipowner and the freighter, the shipowner (and the master as his agent) is bound to carry the goods to their destination, if not prevented from doing so in his own ship, by some event which has no control. he has not occasioned, and over which he has no control. contract to carry the goods to their destination in his own ship, if not prevented by some event over which he "The master," says Lord Tenterden, in his book on Shipping (a), "should always bear in mind, that it is his duty to convey the cargo to the place of destination. This is the purpose for which he has been entrusted with it, and this purpose he is bound to accomplish by every reasonable and practicable method." Many bad consequences, no doubt, might arise from relaxing this rule, by holding out temptation to the shipowner or master to make unnecessary transhipment of goods, whereby the goods themselves run the (a) Page 321, 6th edit. risk of damage, and the policy of insurance may become questioned. But Lord Denmun, in a recent case of Shipton v. Thornton (a), says, "that after all, these inconveniences seem to point to a vigilant examination of every case of transhipment to see that its necessity is well established, rather than to decide the present question: and that this must turn upon the nature of the contract between the parties, as it is to be collected from our own books, and from those foreign laws and ordinances, as well as the writings of jurists, to which our Courts have long been accustomed to have recourse for guidance on subjects of this nature." His Lordship then observes, " that there seems to be much disagreement in foreign ordinances and jurists whether or no the master is bound to tranship, or whether having contracted only to carry in his own ship, he is not absolved from further prosecution of the enterprise by the vis major which prevents him from accomplishing it in the literal terms of his undertaking." learned writers on the subject. I propose, in the first place, to refer to the opinions and 1. Opinions of writings of learned jurists upon this important question, and to some of the ordinances and laws of other maritime and commercial states. Malyne, in his Lex Mercatoria (b), appears to be of Malyne. opinion that the assured may, for a sufficient reason, shift the goods from one ship to another, so as to be delivered according to the charter-party, and the underwriter will continue liable, for he says, "It sometimes happens that upon some special consideration, this clause, forbidding the transferring of goods from one ship to another, is inserted in policies of insurance, because in time of hostility or war between princes, it might be unladen in such ships of contending princes, by which the adventure would be increased. But according to the usual policies, which are made generally without an exception, the assurer is liable thereunto: for it is understood that the master of a ship would not, (a) 9 A. & E. 314. (b) Mal. Lex. Merc. 118. Late Mr. J. Molloy says, if the ship be changed, except by agreement, the underwriters are discharged. Roccus. Santerna and Stracca confirm Roccus' opinion. without some good and accidental cause, put the goods from one ship to another, but would deliver them according to the charter-party at the appointed place." The late Mr. J. Park observes upon this passage, in his own treatise (a), "that the reason given by Malyne in support of his position, is by no means satisfactory, nor is it well founded in point of experience: neither has he adduced a single authority to corroborate the opinion advanced. Indeed," he says, "the whole current of authority turns the other way, at least as far as I have been able to trace it." Molloy has said, that if goods are insured in such a ship, and afterwards in the voyage she becomes leaky and crazy, and the supercargo and the master, by consent, become freighters of another ship for the safe delivery of the goods, and then after she is loaded the second vessel miscarries, the assurers are discharged. It is true, the sentence proceeds thus: "If these words be inserted, namely, the goods laden to be transported and delivered at such a place by the said ship, or by any other ship or vessel until they be safely landed, the assurers must answer for the misfortune." This opinion is confirmed by foreign writers. Roccus writes, "Merces si eâdem navigatione transferantur de unâ navi in aliam, et si novissime navis ubi merces tranfusæ fuerunt, deperdater, tunc est inspicienda forma assecurationis, in quâ, si fuit dictum, quod assecurator merces quæ sunt in tali navis tunc assecurator non tenetur, eo quod mentionem fecit in assecuratione de tali navi. Et ratio est, quia non par est ratio assecurationis, quando merces devehunter in unâ navi et quando in alterâ, immo solet id principaliter considerari inter ipsos assecuratores cum una navis sit magis fortis quam alia" (b) Roccus is corroborated by several foreign writers (c) upon this branch of jurisdiction, which seems so contrary to good policy, and calculated to make the master and crew quit the vessel and let her be lost, the consequence of which must (a) Park Ins. 613. (b) Roccus de Assec. No. 28. (c) Santerna de Assecur. n. 35. Stracca and others, n. 10. invariably fall on the assurers in the shape of a total loss. And we shall afterwards see that a clause is inserted in the usual policies, that the assured, their factors, servants, or assigns, may sue, labour, and travel for, in and about the defence, safeguard, and recovery of the said goods and ship, &c., without any prejudice to the insurance, and it must be clear, in cases where it is possible, the readiest mode to save the property would be transferring it to another bottom, to the charges of which, the clause goes on to say, they (the assurers) undertake to contribute each in proportion of his sum insured therein. But it appears that from the following authorities, in case of necessity, the master is at liberty to tranship, where the transhipment can only be made at a higher rate of freight, and by the French law it becomes an average loss, and in the case of insurance must be borne by the underwriters. By the Rhodian law (a), the laws of Oleron (b), and the ordinances of Wisbuy (c), the master was at liberty but not bound to tranship. Wisbuy. ordinances. 4. Old French By the old French ordinances the master was obliged to do so. "En cas que le vaisseau ne puisse este racommodé, le maistre sera obligé d'en louer incessamment un autre” (d). Upon these ordinances it was maintained, however, by 5. Pothier, Pothier (e) and Valin (f), that it was imperative upon the master; Emerigon (g), on the other hand, insisted that the duty was cast upon him as the agent of the freighters: and New French the same view is adopted by the modern French Code (h). Valin and Code. By the French ordinances (i) and the Code de Commerce, French ordi s. 3, art. 2, 93, num. 68. (f) Nouveau Commentaire sur (g) Traité des Assurances, tom. i, (i) Emer. Traité des Assur. c. xii., s. 16. |