xxvi

TABLE OF CASES OVERRULED, ETC.

Powell v. Hyde (1855), 5 E. & B. 607; discussed, CRAWLEY v. BURR (1883), 8 App. Cas. at p. 396.

Price v. A 1 Ships' Small Damage Assn. (1889), 22 Q. B. D. 580, C. A.; criticised, McArthur, Ed. 2, p. 386.

Proudfoot v. Montefiore (1866), L. R. 2 Q. B. 511, 521; approved, BLACKBURN V. VIGORS (1887), 12 App. Cas. at p. 537.

Randal v. Cockran (1748), 1 Ves. Sen. 98; distinguished, BURNAND v. RODOCANACHI (1882), 7 App. Cas., at p. 339.

Rosetto v. Gurney (1851), 11 C. B. 176; approved, FARNWORTH v. HYDE (1866), L. R. 2 C. P. 204, Ex. Ch.

Roux v. Salvador (1836), 3 Bing. N. C. 266; discussed, FARNWORTH v. HYDE (1865), 18 C. B. (N. S.) at p. 856; TRINDER v. THAMES AND MERSEY MAR. INS. Co. (1898), 2 Q. B. at p. 119, C. A. Sailing Ship Garston v. Hickie (1885), 15 Q. B. D. 580; discussed, HUNTER V. NORTHERN MAR. INS. Co. (1888), 13 App. Cas. 717.

Scottish Mar. Ins. Co. v. Turner (1853), 1 Macq. H. L. 334; dis-
cussed, RANKIN v. POTTER (1873), L. R. 6 H. L. at p. 100.
Smith v. Reynolds (1856), 1 H. & N. 221; followed, BERRIDGE v.
MAN ON INS. Co. (1887), 18 Q. B. D. 346, C. A.

Sparkes v. Marshall (1836), 2 Bing. N. C. 761; explained, ANDERSON v. MORICE (1876), 1 App. Cas. at p. 735.

Stephens v. Australasian Ins. Co. (1873), L. R. 8 C. P. 18; discussed, IMPERIAL MAR. INS. Co. v. FIRE INS. CORPN. (1856), 4 C. P. D. 166.

Stribley v. Imperial Mar. Ins. Co. (1876), 1 Q. B. D. 507; disapproved, BLACKBURN V. VIGORS (1887), 12 App. Cas. at p. 540.

Thompson v. Hopper (1856), 6 E. & B. 172; reversed, THOMPSON v. HOPPER (1858), E. B. & E. 1038; discussed and explained, DUDGEON V. PEMBROKE (1877), 2 App. Cas. 284.

Thompson v. Taylor (1795), 6 T. R. 478; followed, FOLEY v. UNITED MAR. AND FIRE INS. Co. (1870), L. R. 5 C. P. 155.

Thornely v. Hobson (1819), 2 B. & Ald. 513; discussed, CoSSMAN v. WEST (1887), 13 App. Cas. at pp. 177, 178.

Watson v. Clark (1813), 1 Dow. 336, H. L.; discussed, PICKUP v. THAMES AND MERSEY MAR. Ins. Co. (1878), 3 Q. B. D. 594, C. A.

Weir v. Aberdeen (1819), 2 B. & Ald. 320; discussed, QUEBEC MAR. INS. Co. v. COMMERCIAL BANK OF CANADA (1870), L. R. 3 P. C. 234.

West India and Panama Tel. Co. v. Home and Col. Mar. Ins. Co. (1880), 6 Q. B. D. 51, C. A.; overruled, THAMES AND MERSEY MAR. INS. Co. v. HAMILTON (1887), 12 App. Cas. 484, H. L.

Wilson v. Rankin (1865), L. R. 1 Q. B. 162; followed, DUDGEON v. PEMBROKE (1874), L. R. 9 Q. B. 581.

Woodley v. Mitchell (1883), 11 Q. B. D. 47, C. A.; overruled, THE XANTHO (1887), 12 App. Cas. 503.

Yates v. Whyte (1838), 4 Bing. N. C. 272; explained, SIMPSON v. THOMSON (1877), 3 App. Cas. at p. 293.

DIGEST OF THE LAW

RELATING TO

MARINE INSURANCE.

Marine Insurance.

insurance

§ 1.—A contract of marine insurance is a contract of Marine indemnity whereby the insurer undertakes to indemnify defined. the assured in manner and to the extent thereby agreed, against marine losses, that is to say, the losses incident to marine adventure.

RARY

NOTE. For various definitions of marine insurance, and discussion thereof, see post, p. 142; for history of marine insurance, see post, p. 131. The formal instrument in which the contract is embodied is called the "policy." 1 The informal note or memorandum which is drawn up when the contract is entered into is called the "slip" or "covering note." 2

The party who undertakes to indemnify the other, that is to say, the promisor, is called the "insurer or "underwriter" (so called because he subscribes or underwrites the policy). The party to be indemnified is called the "insured," or, more commonly, the "assured."

The consideration which the insurer receives for his undertaking is called the " premium." But in the case of mutual insurance a guarantee or other arrangement may take the place of the premium.3

1 From Latin pollicitatio, a promise, through Italian polizza or French police. Oddly enough, in an English policy the promise to pay in case of loss is implied, not expressed. Continental policies contain an express promise to pay within so many days after notice of loss.

2 See McArthur, Ed. 2, p. 21, and §§ 22, 23, 89.

3 As to premium, see §§ 53–55, and as to mutual insurance, § 85.

B

SECT. 1.

The term "loss" includes damage or detriment as well as actual loss of property.1

The term "risk" is used in different senses, and must always be construed by the light of its context. Sometimes it is used to denote the perils themselves to which insurable property may be exposed, as when sea risks are contrasted with land risks, or when goods are insured against "all risks." Sometimes it is used to denote the risk run by the person whose property is exposed to danger. But, more commonly perhaps, it is used to denote the liability undertaken by the insurer in respect of his contract, as, for example, when goods are lost, and it is said that "the risk had not attached," that is to say, that the goods were not covered by the policy.2

Marine insurance, in legal theory, is essentially a contract of indemnity.3 The legal consequences and incidents of the contract are deductions from this cardinal principle. Hence arise its distinctive characteristics, such as the rules requiring interest, the necessity for full disclosure by the assured, the rules as to double insurance, the right of subrogation which arises on settlement of the loss, and the right to return of premium tn certain events. But it has often been pointed out that in practice marine insurance is not a perfect contract of indemnity. For example, under an unvalued policy on goods, in the ordinary form, and without any special clause, the assured will probably receive less than his real loss,5 while under a valued policy he may receive an amount which either exceeds or falls short of his real loss. But this deviation in practice from true indemnity depends rather on the form of policies in actual use than on the nature of the contract itself; see Phillips on Insurance, § 3.

The main principles of marine insurance law are well settled.

1 As to loss, see §§ 57-67. For a useful discussion of the mercantile meaning of loss, see Moss v. Smith (1850), 19 L. J. C. P. 225, 228.

2 Cf. Bradford v. Symondson (1881), 7 Q. B. D. at p. 464, per Lord Bramwell.

3 Arnould, Ed. 6, p. 3; McArthur, Ed. 2, p. 23; per Lord Mansfield, Kent v. Bird (1777), 2 Cowp. at p. 585 (wager policy); per Lord Blackburn, Lloyd v. Fleming (1872), L. R. 7 Q. B. at p. 302 (assignment after loss); per Jessel, M.R., Pitman v. Universal Mar. Ins. Co. (1882), 9 Q. B. D. at p. 204 (partial loss); per Lord Esher and Lord Bowen, Castellain v. Preston (1883), 11 Q. B. D. at pp. 386 and 397 (subrogation).

Aitchison v. Lohre (1879), 4 App. Cas. at p. 761.

5 Arnould, Ed. 6, pp. 297, 298; McArthur, Ed. 2, pp. 24 and 68. In practice the expected profits are covered by special provision, see Owen's Notes and Clauses, Ed. 3, p. 79.

6 Cf. Woodside v. Globe Ins. Co. (1896), 1 Q. B. at p. 107.