the risk. Then, as soon as it was known that there was an excess beyond £ 5,000 on any particular ship, it was the practice, and they were bound to notify it to the defendants; but that was not a condition precedent to the policy attaching. Harman v. Kingston, 3 Campb. 150. Here, as soon as it was known that there was an excess beyond £ 5,000 insured on the Red Gauntlet, the defendants were told that the plaintiffs were to put on the Red Gauntlet, and when they received full particulars they forwarded them to the defendants."

Bovill, Q. C., (Watkin Williams with him,) contra: "It is a mistake to assume that these policies were all one continuous policy. On the 17th March, the plaintiff's had consumed all the existing policies, and they had run off. The next policy was on the 19th March, and the memorandum indorsed on it, 'to follow the 17th March,' meant to follow the policy which was consumed on the 17th March. Then, when the policy of the 19th March was effected, it was known that the vessel was lost, and the policy could not attach. Secondly, the policy was to cover the excess beyond £5,000 taken on any one ship as may be declared.' A declaration was therefore necessary, because the policy was not on all the ships, and as soon as, but not until, the ship was declared, did the policy attach. Until the particular ship was declared, there was nothing on which the policy could attach."

Lush, in reply: "Here there was no knowledge of the loss of that which was the subject of insurance at the time this policy was effected. All that was known was that the vessel was lost, but

not that the Hong-Kong Company had any interest beyond £5,000 in the goods on board. Mead v. Davison, 3 A. & E. 303. The argument that the policy does not attach until the declaration is made practically comes to this, that the defendants do not insure any of the plaintiffs' ships that do not arrive safely, because some time, about six weeks, must elapse between the appropriation at Calcutta and the declaration in England. In no case is a declaration a condition precedent to a policy attaching. 1 Arnould on Insurance, 175."

Cockburn, C. J.: "I am of opinion that our judgment should be for the plaintiffs. The first point for our consideration is, whether there is any sufficient policy to cover the loss incurred. It is true that the policy which was appropriated to the risk by the assured on the goods on board the Red Gauntlet was posterior, in point of time, to the risk; but I think we must take it that the policy was made in anticipation of a risk to be afterwards appropriated and declared. When we look at the course of dealing, we see it was intended that the plaintiffs' principals, the Hong-Kong Company, should always be covered by insuring with the defendants any risk they might take in excess of £ 5,000 on goods in any particular ship. Mr. Bovill did not attempt to deny, that, if the policy in question had been effected on the 16th March instead of on the 19th, it would have been sufficient to entitle the Hong-Kong Company to recover, although made after the appropriation. But then he contended, that, although that might be so, yet the policy is vitiated, because the ship, the Red Gauntlet, was, to the knowledge of both

parties, lost at the time the policy was made. The argument is capable of two answers. First, the answer given by Mr. Lush is a satisfactory one, namely, that even if the agent at Calcutta had known of the loss, and although it was not known as a matter of common knowledge there, this would not have vitiated the policy, because the loss of the ship was not the risk insured, but the excess beyond £5,000 which the plaintiffs might have in any particular vessel. Now, when this policy was effected, it was not known that the HongKong Company had any particular interest in the goods on board of the Red Gauntlet, and therefore the plaintiffs had no knowledge of the loss that was covered by the policy. Be that as it may, here the loss of the Red Gauntlet was common knowledge to both parties, and, in the absence of authority to the contrary, I, for one, should hold that, if an underwriter chooses to insure, with the knowledge, common to both the insurers and the insured, of the loss of the thing insured, he is not the party to say that the insurance is to go for nothing. He may have had good reasons for taking the risk. I think, therefore, that there is nothing in the circumstance of the loss of the ship to vitiate the insurance. That being so, then comes the question whether the declaration here, having been made subsequent to the loss, is good. The policy gives the assured the right to appropriate it to any particular ship, but such appropriation must be declared to the defendants. Now, Mr. Bovill contends that, until the declaration is made, the policy does not attach. To put that construction upon it would be to frustrate the intention of

the parties altogether. The risk intended to be protected was any excess beyond £ 5,000 on goods in any particular vessel which the Hong-Kong Company might have insured. But whether the Hong-Kong Company would have an excess in any particular vessel would not be known until the loading was complete and the vessel about to sail; and the fact of such excess could not be communicated from Calcutta to the plaintiffs for about six weeks afterwards, and in the mean time the vessel would have started on her voyage. Could it ever have been intended that the ship for so much of her voyage was to be unprotected by this insurance? I think most certainly that that was not what was meant by declaring the vessel. But there are two other constructions which may be put on the meaning of declaring the vessel, equally favorable to the plaintiffs. It may be said, that, looking at all the circumstances, all that could be meant by the appropriation was, that the assured by some overt act from which they could not recede should fix the vessel on which the policy was to attach, and that, when they had once done that, although the fact might not come until a later period to the knowledge of the underwriters, then all was done which the policy required. It is not, however, necessary to go that length; it is enough to say that it is sufficient if the declaration be made on the first convenient occasion. By this construction the underwriters are protected, because, if there is any attempt to reappropriate after a particular vessel has been declared, it will be a fraud on the underwriters. In some shape or other the appropriation must be so

Crompton, J.: "I am of the same opinion. The real construction is that this policy was intended to follow the former one between these parties, and the object was to cover the excess beyond £5,000, which the Hong-Kong Company might insure in any particular ship. They show that it was intended to keep on renewing this arrangement from time to time. It was intended to give the plaintiffs all the rights under the new policies which they had under former policies. The main question in the case is, whether the policy attached, and whether the declaration was made in time. I do not agree with that part of Mr. Lush's argument in which he said that it was meant that the risk should attach on all the ships in their order; but I think that when the risk was appropriated to any particular ship by the company abroad, the policy attached. Whether that is so or not, I think the appropriation here was communicated in good time. My Lord Chief Justice has pointed out, during the argument, that the whole voyage would not be covered by the construction contended for by Mr. Bovill. I take what was intended to be this: 'You may apply the policy to any risk you please, but you must be bound by the appropriation you make when communicated to us in London. In one

sense it is a positive condition, and it means that the appropiation is to be declared in London according to the instructions from abroad.' I adopt Lord Ellenborough's view that the naming of what it is to which the policy is to attach is a power given to the assured, and that it may be exercised at any time so long as there is no fraud. There is nothing here to show that that power was taken away when the declaration was made. The plaintiffs therefore are entitled to judgment."

Millor, J.: "I am of the same opinion. The nature of the contract was, on the part of the defendants, to protect themselves against a double appropriation of the risk, and, on the part of the Hong-Kong Company, to protect themselves against any excess beyond £ 5,000 insured by them on goods in any particular ship. The loss of the ship is not the risk insured against, but the excess beyond the £5,000, and in that view the knowledge of the loss of the ship is not material. I entirely agree in what my brothers have said, and I will not travel over the same ground again."

Shee, J.: "I am of the same opinion. The defendants, by a contract of the 19th of March, have undertaken to insure the excess of risk above £5,000 which the Hong-Kong Company may have on goods in any particular ship. The Red Gauntlet, which had been insured by the Hong-Kong Company for a risk above £5,000, was one of that class of ships. On the plain meaning of the words of the contract, the excess of risk on the Red Gauntlet would be within the contract. At the time the policy of the 19th March was effected, it was known to both parties that the Red Gauntlet was lost, but it was not known that the Red Gauntlet was one of the ships which had been insured by the

Hong-Kong Company. To vitiate the policy there must be knowledge that the risk insured against was terminated. It was not known that any risk on the ship Red Gauntlet had been taken by the Hong-Kong Company Then it was said by Mr. Bovill that the ship was not declared, and that therefore the policy did not attach. The contract is that the defendants will insure, and the plaintiffs engage to declare the ship. That can only mean

that the assured is to declare in what ship the Hong-Kong Company have a risk exceeding £ 5,000. The appropriation is the thing done in Calcutta. The taking of the risk and the policy attached upon the appropriation. The declaration is of an appropriation made abroad. The defendants could not, in my opinion, have defeated the policy if they had known that the risk insured against, as well as the ship, had been lost." Judgment for the plaintiffs.