either by British subjects or foreigners, and whether on British or foreign ships, is void unless it comes within the exceptions of the statute.1 Insurances are sometimes effected, not under the name or in the form of reinsurance, but under the same principles; as if a carrier insures against the risks he incurs,2 or the owners of a vessel, who were answerable for losses caused by the faults of persons employed by them, caused themselves to be insured against those risks. And an owner who sold his vessel, stipulating that he will 1 Andree v. Fletcher, 2 T. R. 161, is an emphatic declaration of the meaning and force of the St. 19 Geo. 2, ch. 37, § 4. As to the expediency of this statute, see Magens on Ins. vol. 1, p. 95, and Benecké, tom. 1, p. 284. 2 In Crowley v. Cohen, 3 B. & Ad. 478, which was a case of insurance effected on goods on board of thirty boats, for twelve months, between London, Birmingham, &c., the amount of the policy was $12,000; the insured were warranted "free from damage or loss that may arise from wet, occasioned by rain, snow, or hail, or from any loss arising from plunderage, barratry, or pilferage," it was held that an insurance "on goods" was sufficient to cover the interest of the carriers in the goods under their charge. 3 Walker v. Maitland, 5 B. & Ald. 171. The plaintiff in this action had chartered his ship to one Wildman to proceed to the West Indies for a cargo. By custom, the owner of the ship was liable for any loss occurring while cargo was brought from the shore to the ship. To indemnify himself, the plaintiff effected insurance "on boats belonging to the ship Britannia, and on produce in said boats, or in any other craft employed in loading the said ship during her stay at St. Kitt's." The defendant subscribed this policy for two hundred pounds. During the loading of the ship several losses occurred, on ac count of, and caused by, the negligence and incompetency of the crew; and this action was brought to recover for the losses sustained. Abbott, C. J., was of opinion that the plaintiff was entitled to recover. "The subject of the insurance was very special. No doubt the owner under this policy expected to be indemnified for the loss in question. The words in the policy are very large, and, though it may appear extraordinary that the underwriters should undertake to indemnify the assured against the negligence of the master and crew, which is a species of misconduct on their part, yet it is clear that they do so in cases of barratry. In this case the immediate cause of the loss was the violence of the wind and waves. No decision can be cited where, in such a case, the underwriters have been held to be excused, in consequence of the loss having been remotely occasioned by the negligence of the crew. I cannot distinguish this case from that of Busk v. The Royal Exch. Assurance Co., 2 B. & A. 75; there, the immediate cause of the loss was fire, produced by the negligence of one of the crew; yet the underwriters were held to be liable. Here, the wind and waves caused the loss, but they would not have produced that effect, unless there had been neglect on the part of the crew. I think that the underwriters are liable.” bear certain risks, may insure against them.1 And it may be said in general, that, wherever the insurance is not on the property of the insured, but against risks which he bears, this is in the nature of reinsurance. In Reid v. Cole, 3 Burr. 1512, the owner of a ship had sold her under agreement to pay the purchaser £ 500 if she was lost within three months. The court held that he had an insurable interest to that amount. CHAPTER X. POLICIES ON TIME. A VERY frequent form of policy insures the ship or the cargo during a period of time, with no reference to the voyages which the ship may make, with or without the cargo, or the places she may be in within that period. This is sometimes expressed by the phrase," wherever she may be," but it would be a conclusion of law from the fact that it was a time policy, unless there were certain provisions respecting the voyage or place, in which case it would be rather a mixed policy than a time policy. The term specified in the policy, whether it be for the beginning or for the end, is the time at the place where the contract is made, and not the time at the place where the ship may happen to be, unless it is otherwise provided in the policy. So, too, such an insurance ends during the time for which the policy continues, be totally and permanently lost or disabled from performing the voyage then in progress, or any other voyage within the scope of the policy." And see also Coggeshall v. Amer. Ins. Co., 3 Wend. 283, where Mr. Chief Justice Savage said: "A policy on time is subject to the rules of construction in other cases, except as to the commencement and termination of the voyage." 1 Bradlie v. Maryland Ins. Co., 12 Peters, 378, in which Mr. Justice Story said: "A policy on time insures no specific voyage, but it covers any voyage or voyages whatsoever undertaken within, and not exceeding in point of duration, the limited period for which the insurance is made. But an insurance on time by no means contains any undertaking on the part of the underwriters that any particular voyage undertaken by the insured within the prescribed period shall be performed before the expiration of the policy. It warrants nothing as to any retardation or prolongation of the voyage; but only that the ship shall be capable of performing the voyage undertaken, notwithstanding any loss or injury which may accrue to her during the time for which she is insured, and of resuming it if interrupted. In other words, the undertaking is that the ship shall not, by the operation of any peril insured against 2 In Walker v. Protection Ins. Co., 29 Maine, 317, the action was upon a policy of insurance effected at Portland, upon the bark Elizabeth, on the 17th of December, 1845, for one year, commencing and ending at twelve o'clock, noon. Wells, J., said: "The jury were instructed that the risk would not expire until the expiration of the year, the time being reckoned according as it would be twelve o'clock at noon at Portland on December 17th, 1846. The vessel having been lost on the day when at the prescribed time, not only without reference to the place of the ship, but with entire disregard of the object or completion of the voyage. And if the loss occurs at any moment within the the policies expired, and, as the defendants contended, after noon, at the place where she then was, this instruction was material. The contract of insurance was for a year, and if the time of noon should be taken at a place east or west longitude from Portland, on the day when the risk expired, the period of time would be lessened or extended, and might be less or more than a year. Such a construction would be in violation of the contract. The parties must be considered as regarding the meridian of the place where the contract is made, unless some other one is mentioned in it." 1 Grousset v. The Sea Ins. Co., 24 Wend. 209; action on a marine policy of insurance effected in New York on the schooner Hero, &c. "At and from New Orleans, Campeachy, and Havana, for the period of six calendar months from the 12th September, 1835, beginning the adventure upon the said vessel, tackle, apparel, &c., at as aforesaid, and so shall continue and endure until the vessel shall be safely arrived at as aforesaid." The vessel was injured in a gale while proceeding from Havana to New York, and put into Charleston, S. C., for repairs. The presiding judge instructed the jury that it seemed to him this policy covered only specific voyages between the three ports named in the policy, and that as the voyage on which she was injured was not one of these the defendants could not be held for the average of the expense of repairs. Plain tiff's sued out a writ of error, verdict having been rendered under these instructions for the defendants. Mr. Chief Justice Nelson, in giving the opinion of the . court, said: "Usually when the insurance is upon a particular voyage or voyages, there is no reference to time when the risk commences or terminates. When the insurance is for a term of time, the termini of the risk are the day and hour specified when the insurance commences and terminates, and the statement of the place of either is not common. The form of the policy used is the common one in cases of insurance for a particular voyage where the termini are given. This, together with several other provisions, have no consistent or possible application to the case of an insurance upon time, or where that enters into the description of the risk. In any view that I have been able to take of this case, it seems to me the plaintiff below was entitled to recover, and that, therefore, the judgment should be reversed." In Manley v. United F. & M. Ins. Co., 9 Mass. 82, the policy was on a vessel for one year, commencing the risk at B., on the 7th December, but in point of fact she had left that place on the 6th, and was some fifty miles distant on the 7th. The loss happened within the year, and the plaintiff recovered; the court holding the risk determined by time, and the place of commencement by fair construction not material. period of time, the liability of the insurer is complete, with no reference to the quantity of time which has passed between the beginning of the risk and the loss. Hence the insurance is not suspended by the ship putting into and remaining in a port of distress, nor indeed if she goes anywhere without any necessity or justifying cause, because the law of deviation cannot apply to a policy on time, for the reason that it has no prescribed track.2 For a similar reason, a pure time policy gives to the insured liberty to dispose of the goods insured at any place. A further inference is made in an American case, and a rule laid down in very positive terms by the court. This is, that a policy on time simply, with no specification of ports or places, must necessarily imply a trading voyage, and therefore the policy attaches during the whole time, not only to the goods at first on board, but to the board the vessel. This was held to be a policy on a trading voyage, such being considered to be the intention of the parties, and that as such the insured had all the usual privileges of touching and trading common to such a voyage, and that, however often the goods might be changed, the policy would attach. It was held in Martin v. Fishing Ins. Co., 20 Pick. 389, in which a vessel was insured "at and from C., on the 16th day of July at noon, to, at, and from all ports and places to which she may proceed in the coasting business for six months," that the policy attached, although there was no evidence that the vessel was at or prosecuting her voyage from C., on the day named, it appear ing that when the policy was made, neither party knew when the vessel sailed from C., and that it was their intent to insure on time, without regard to the place where the vessel might be. Tyrie v. Fletcher, 2 Cowper, 666. In Loraine v. Tomlinson, 2 Dougl. 585, Lord Mansfield said: "This is a mere case of construction, on the face of the instrument. It is an insurance for twelve months, for one gross sum of 1 £18. They have calculated this sum at the rate of fifteen shillings per month. But what was to be paid down? not fifteen shillings for the first month, and so from month to month, but £18 at once. Tyrie v. Fletcher is directly in point against the defendant. There are two principles in these cases: 1. If the risk has never begun, the whole premium is to be returned, because there was no consideration; 2. When the risk has begun, there never shall be a return, although the ship should be taken in twenty-four hours." in It was said by Mr. Justice Cowen, Union Ins. Co. v. Tysen, 3 Hill, 118, that "it is of the nature of a time policy that it limits the vessel to no geographical track. It is impossible, therefore, to make out a defence on the ground of a deviation, in the ordinary sense of the word. Nor can any particular trip or voyage be regarded as having the effect of a deviation, unless it be undertaken in fraud of the policy. And in Keeler v. Firemen's Ins. Co., 3 Hill, 250, Mr. Justice Cowen said: "It is difficult to perceive how deviation can be predicated in a time policy." |