instance, suppose the value in the policy 30%.: the goods are damaged, but sell for 40%.: had they been sound they would have sold for 50%.: the difference is one-fifth: he pays that proportion on the prime cost or value in the policy (i. e. 6l.); if they come to a losing market for 107., being damaged, but would have sold for 201. if sound, the difference is one-half, and the defendant must pay one-half of the prime cost or value in the policy (i. e. 157.). To this rule two objections have been made: the first objection is, that it is going by a different measure in the case of a partial from that which governs in the case of a total loss, for upon a total loss the prime cost or value in the policy must be paid.

Answer. The distinction is founded in the nature of the thing. Insurance is a contract of indemnity against the perils of the voyage; the assurer engages, so far as the amount of the prime cost or value in the policy, "that the thing shall come safe," he has nothing to do with the market; he has no concern in any profit or loss which may arise to the merchant from the goods: if they be totally lost, he must pay the prime cost, that is the value of the thing he insured at the outset he has no concern in any subsequent value. So, likewise, if any part of the cargo, capable of a several and distinct valuation at the outset, be totally lost, as if there be 100 hogsheads of sugar, and 10 happen to be lost, the assurer must pay the prime cost of those 10 hogsheads, without any regard to the price at which the remaining 90 are sold. But where an entire individual, as one hogshead, happens to be spoiled, no measure can be taken from the prime cost to ascertain the quantity of such damage, but if he can fix whether it be a third, fourth, or fifth worse, the damage is to a mathematical certainty. How is it to be found out? Not by any price at the outset port, but it must be at the port of delivery where the voyage is completed, and the whole damage known. Whether the price there be high or low, in either case it equally shew whether the damaged goods are a third, fourth, or fifth worse than if they had come sound; consequently, whether the injury sustained be a third,

fourth, or fifth of the value of the thing, and as the assurer pays the whole prime cost if the thing be wholly lost, so if it be only a third, or fourth, or fifth worse, he pays a third, fourth, or fifth of the value of the goods so damaged." The next objection with which this case has been much entangled, is taken from this being a "valued" policy. I am a little at a loss to apply the arguments drawn from thence. It is said, "that a valued is a wager policy," (like interest or no interest), if so, there can be no average loss, and the assured can only recover as for a total loss, abandoning what is saved, because the value specified is fictitious."

policy is not a wager policy.

The value so that the

should be fixed

assured obtains no more than

Answer. "A valued policy is not to be considered as a A valued wager policy, or like 'interest or no interest,' if it was it would be void by the act of 19 Geo. 2, c. 37. The only effect of the valuation is fixing the amount of the prime cost, just as if the parties admitted it at the trial, but in every argument, and for every other purpose, it must be taken the value was fixed in such a manner as that the assured meant only to an indemnity. have an indemnity. If it be undervalued, the merchant himself stands insurer of the surplus. If it be much overvalued, it must be done with a bad view, either to gain contrary to the act before mentioned, or with some view to a fraudulent loss; therefore the assured can never be allowed in a Court of Justice to plead that he has greatly overvalued, or that his interest was a trifle only." It is settled, that upon valued policies the assured need only prove some interest to take it out of the stat. 19 Geo. 2, because the adverse party has admitted the value, and if more was required, the agreed valuation would signify nothing; but if it should come out in proof that a man had insured 20007., and had interest on board to the value of a cable only, there never has been, and I believe there never will be, a determination that by such an evasion the act may be defeated. There are many conveniences from allowing valued policies, but where they are used merely as a cover to a wager, they would be considered as an evasion. The effect of the valuation is only fixing conclusively the prime If it be an open policy, the prime cost must be proved;

Definition by of an open and of a valued

Lord Mansfield

policy.

There is no case or principle of the law of insurance which makes the estimated value in the policy a cir

cumstance on which the question of

total or partial loss ought to turn.

After judgment by default on a valued policy, the

plaintiff's title to recover is

confessed, and

the value is

fixed by agree

ment in the policy.

in a valued policy it is agreed. To argue that there can be no adjustment of an average loss upon a valued policy,' is directly contrary to the very terms of the policy itself. It is expressly subject to average, if the loss upon sugars exceed 5 per cent.; if it was not, the consequence would not be that every partial loss must therefore become total, but the event, to entitle the assured to recover, would not happen unless there was a total loss."

In the late case of Young v. Sir J. H. Irving, Bart., and others (a), which was tried before Tindal, C. J., at the Sittings at Guildhall after Hil. Term, 1836. At the trial, two objections to the charge of the Chief Justice were taken. The first (which is the only one connected with our present inquiry) was this, "that the Chief Justice ought to have told the jury, that in determining whether the loss was partial or total, they ought to take into their consideration the estimated value of the ship in the policy." The bill of exception came on in the Exchequer Chamber, when Lord Abinger said, "I am not aware of any case or principle in the law of insurance which makes the estimated value in the policy a circumstance upon which the question of total or partial loss ought to turn. The agreed value in the policy of the subject insured, is to save the expense and doubt that may attend the investigation of value, as affecting the quantum of compensation only. It may operate, according to events, to the detriment or advantage of either party, and where no fraud exists both are bound by it. We are of opinion that there is no ground for the first exception."

In the case of Thelluson v. Fletcher, (b) which has already been referred to in this Treatise, as a case shewing that the 19 Geo. 2, c. 37, does not apply to foreign ships: I now again refer to it, on the subject now under our consideration. This was a rule to shew the inquisition on a writ of inquiry in an action should not be set aside. The material part of the policy for our now purpose, was in these words." On

(a) 9 Scott's N. R. 752.

(b) 1 Doug. 315, ante, p. 32.

all goods loaden or to be loaden aboard the ships, Le Soigneux, La Pucelle, and Le Vainquer, all or any of them: the said goods and merchandises, by agreement are, and shall be valued at (a) on twenty-five casks of clayed sugar, and twelve hogsheads of Muscovados: the policy to be deemed sufficient proof of interest in case of loss." The defendant had underwritten 3007., and having suffered judgment by default, the jury, on the writ of inquiry assessed the damages at that sum, without any proof of the amount or value, or any evidence whatever, except of the defendant's handwriting to the policy. After the argument at the Bar; the Court said, that the only affidavits that could have been here, was from the circumstance of there being three ships, but the second count was so framed (the count averring that the goods were shipped on board the three ships, or some, or one of them, to the amount insured, and that two of them had been captured, and the other lost,) as to make the case the same as if there had been but one. By suffering judgment, the defendant had confessed the plaintiff's title to recover, and the amount was fixed by the stipulation in the policy. Rule discharged.

SECTION IX.

TOUCHING THE ADVENTURES AND PERILS, ETC.

The assurers, in this section, commence by referring to the risks and adventures which they (the assurers) are contented to bear, and take upon themselves in the voyage insured, and afterwards they proceed to enumerate them. It is our purpose in the present section, to confine ourselves to some general observations on the adventures and perils, which the assurers take upon themselves, and to refer to some general rules and principles of the law of marine insurance, upon this particular head of the subject; and in

(a) This was left blank as here printed.

1. In construing a policy the direct and

not the remote

cause of the loss is looked

to.

regard to which, I may observe, that it is most important to have clear ideas upon these rules and principles, upon which the Courts in modern times have construed this part of the policy. And I may preface the following matter, by a few observations, on the grounds upon which the Courts have decided many cases relating to the perils insured against, and on the advantages which, in this respect, the assured possess over the assurers.

The contract of which we are treating, must undoubtedly be looked upon, in respect of the nature of the element upon which it is to be performed, as subject to much more uncertainty, and to many more vicissitudes than any other contract known to the law. The difficulties of proving the real causes of disasters at sea, and to the well known contradictory evidence which is given at the trial on seafaring matters, make it exceedingly difficult to arrive at the fact of "whether the loss or misfortune, in many instances, arose from one cause or from another." The Courts of law, in this country especially, bearing this in mind, and sensible of the strictness of the rule binding the assured, of the implied warranty of the seaworthiness of the bottoms, (upon which the insurance is made,) and also considering the payment of the premiums paid by the assured to the underwriter, by agreement, at the time, the underwriter always acknowledging the receipt of it, have laid down many rules in such cases, to prevent the underwriters shaking off their responsibility, on the plea of some uncertainty in the proof of the manner in which the loss happened. I shall briefly advert to what, I believe, to be the principal rules, principles, and maxims of the law, which the Judges have applied to this contract more particularly than to any other: this, in the following sections, will be found to be satisfactorily demonstrated.

The first rule which I shall mention is this, viz.:-" that the immediate and not the remote cause of the loss, is that which is looked to by the Court in considering the question, whether the accident come within the perils insured against by the underwriters; and if this be covered by the terms