Willis v. Cooke, 25 L. J. Q. B. 16; 5 E. & B. 641; 1 Jur. (N. S.) 1164; Willison v. Patteson, 7 Taunt. 439; 1 Moore, 133; 18 R. R. 525. T. 9; 15 W. R. 693..... Wilson v. Creighton, 3 Dougl. 132, cited 1 T. R. 113 Wilson v. Duckett, 3 Burr. 1361...... SECT. .235, 280 93 16 L. 916, 932 111 574, 1256 Wilson v. Forster, 1 Marsh. 425; 6 Taunt. 25; 16 R. R. 560..1089, 1110, 1164, Wilson v. Jones, 36 L. J. Ex. 78; L. R. 2 Ex. 139; 15 L. T. 669; 15 W. R. 435.. .238, 249, 260, 288, 307, 315, 714, 725 Wilson v. Marryatt, 8 T. R. 31; 1 B. & P. 430.. 92, 93, 95, 657, 735, 746, 755 Wilson v. Martin, 25 L. J. Ex. 217; 11 Ex. 684 232, 233, 248, 263, 264 Wilson v. Millar, 2 Stark. 1; 19 R. R. 670 .... Wilson v. Nelson, 5 B. & S. 354; 33 L. J. Q. B. 220; 10 Jur. (N. S.) 1044; 10 L. T. 523; 12 W. R. 795 ........ ...... .206, 1148 20, 339 ....704, 745, 829 Wilson. Rankin, 35 L. J. Q. B. 87; L. R. 1 Q. B. 162; 13 L. T. 564; Wilton v. Reatson, 1 Park, Ins. (8th ed.) 16 .885, 886 169 .768, 770, 1274 Wingate v. Foster, 47 L. J. Q. B. 525; 3 Q. B. D. 582; 38 L. T. 737; 26 .431, 471 Winter. Haldimand, 2 B. & Ad. 649; 9 L. J. (O. S.) K. B. 313; 36 .229, 232, 233, 248, 264 Winthrop v. Union Ins. Co., 2 Wash. C. C. R. 7 Wolcott v. Eagle Ins. Co., 4 Pick. 429.. .427, 430 224, 226, 227 Wolff v. Horncastle, 1 B. & P. 316; 4 R. R. 808 ..138, 140, 169, 170, 291, 293, Woods v. Dean, 3 B. & S. 101; 32 L. J. Q. B. 1; 7 L. T. 561; 11 W. R. 22 1190 Woolridge v. Boydell, 1 Dougl. 16 237 Woolf v. Claggett, 3 Esp. 257; 6 R. R. 830 Woolmer v. Muilman, 1 W. Bl. 427; 3 Burr. 1419 Work v. Leathers, 97 U. S. (7 Otto) 379... Worsley v. Wood, 6 T. R. 710; 2 H. Bl. 574; 3 R. R. 323 Wright v. Barnard, 2 Esp. 700; 5 R. R. 767 Wright v. Marwood, 50 L. J. Q. B. 643; 7 Q. B. D. 62; 45 L. T. 297; 29 W. R. 673; 4 Asp. M. C. 451.... Wright v. Shiffner, 2 Camp. 247; 11 East, 515; 11 R. R. 263 .... Woodside v. Globe Marine Ins. Co., [1896] 1 Q. B. 105; 65 L. J. Q. B. 117; 73 L. T. 626; 44 W. R. 187; 8 Asp. M. C. 118; 1 Com. Cas. .20, 339, 1033, 1092, 1184, 1223 ..908, 921, 922 646 756 VOL. I. f X. .... SECT. ..775, 812 Xantho, The, 11 P. D. 170; 12 A. C. 509; 56 L. J. Adm. 116; 57 L. T. ..10, 872 Xenos v. Wickham, 13 C. B. (N. S.) 381, 435; L. R. 2 H. L. 296; 33 L. J. C. P. 13; 36 L. J. C. P. 313; 16 L. T. 800; 16 W. R. 38; 14 C. B. (N. S.) 435.. ..27, 35, 54, 107, 108, 119, 163, 165, 1276 Y. Yates v. White, 4 Bing. (N. C.) 272; 5 Scott, 640; 7 L. J. C. P. 116; 44 ..... Yonge Pieter, The, 4 C. Rob. 79.. ...... 1208, 1226, 1227, 1231 769 134 110 ...... Young v. Bank of Bengal, 1 Moo. Ind. A. C. 87; 1 Moo. P. C. 50; 1 In Charlesworth v. Faber (1900), 5 Com. Cas. 408, Bigham, J., dissented from, or distinguished, the decision of Day, J., in Franco-Hungarian Ins. Co. v. Merchants' Marine Ins. Co., and held that a continuation clause in a time policy for twelve months was incorporated in a policy of re-insurance for the same period, "subject to the same clauses and conditions, &c." Note in s. 328. In Royal Exchange Ass. Co. v. Sjoforsakrings Aktie-Bolaget Vega (15th June, 1901), 17 Times L. R. 599, Bigham, J., held that, under a time policy for twelve months with a continuation clause, a loss occurring after the expiration of twelve months was not recoverable, and that if the policy could be considered one for time and a voyage, the voyage policy was invalid, as not sufficiently specifying the risk. The learned judge also expressed the opinion that a loss occurring within the twelve months would have been recoverable. Note in $8. 8, 440. The decision of Mathew, J., in Driefontein Consolidated Gold Mines v. Janson, [1900] 2 Q. B. 339, cited in ss. 89, 99, 428, 803, 834, was affirmed by a majority of the Court of Appeal on the 21st June, 1901. A. L. Smith, M. R., and Romer, L. J., held that the plaintiffs, a company incorporated under the laws of the South African Republic, could recover for a loss of gold, seized by the Government of the Republic a few days before the declaration of war against this country. Vaughan Williams, L. J., held that the plaintiffs were subjects of the Republic, and that it was against public policy that British subjects should indemnify them against a loss due to a seizure of property for the purposes of an imminent war against this country. Note also in ss. 249, 307, for the remarks of Smith, M. R., as to the interest of shareholders in the property of a company. MARINE INSURANCE. PART I. OF THE NATURE, FORMATION, AND SUBJECT MATTER OF Nature of the Indemnity afforded by Marine Insurance. 3-6 Marine 1. MARINE Insurance is a contract whereby one party, for Definition of an agreed consideration, undertakes to indemnify the other Insurance. against loss arising from certain perils or sea-risks, to which his ship, merchandise, or other interest in a maritime adventure, may be exposed during a certain voyage, or a certain period of time (a). 2. The party interested in the property or thing (6) insured Explanation is called the insured or assured. The property or thing insured itself is called the subject of insurance. The title or interest which the assured has in the subject of insurance is called his insurable interest. (a) Cf. the definition in the Marine Insurance Bill, 1899, s. 1; and see the definition of a "marine adventure," ibid. s. 3. See App. VOL. I. (b) The editors have added the words "or thing" because the subject of the insurance may be something which is not property, e.g., expected profits. B of terms. Sect. 2. The party undertaking to indemnify the assured against loss is called the insurer or underwriter. The consideration for which he so undertakes to indemnify him is called the premium (c). The instrument by which the contract of indemnity is effected is called in England the policy. That which is insured against is loss arising from marine casualties (d). These casualties are in technical language called, sometimes, the perils insured against and sometimes the risks covered by the policy, expressions which mean one and the same thing, and are employed to signify those causes of loss against the effect of which the underwriter undertakes by his contract to indemnify the assured. The interest of the assured is technically said to be covered by the policy, when the sum or aggregate of sums insured in the policy is sufficient to afford him full compensation for whatever loss that interest may sustain. If the value of his interest exceeds the sum insured, the excess of interest is said to be "uncovered by the policy," and the assured to be "his own insurer to that extent.” When the liability of the underwriter commences under the contract, the technical mode of expressing this is by saying that "the policy attaches," or "the risk begins to run," from that time. (c) The word premium is generally used only to denote the stipulated sum of money which the assured usually pays to the underwriter. Lord Esher has, however, pointed out that the word may be used in a wider sense, to cover the consideration (whatever it may be) which moves from the assured to the insurer. In this sense the premium which a member of a mutual insurance association pays is his liability to contribute to the losses of other members. See Lion Insurance Asso ciation v. Tucker (1883), 12 Q. B. D. 176, 187. (d) "Maritime perils' mean the perils consequent on, or incidental to, the navigation of the sea; that is to say, perils of the seas, fire, war perils, pirates, rovers, thieves, captures, seisures and restraints, and detainments of princes and peoples, jettisons, barratry, and any other perils, whether of the like kind or not, which may be designated by the policy." Marine Ins. Bill, 1899, s. 3 (2). marine 3. The very essence of the contract of Marine Insurance is Sect. 3. that it is a contract of INDEMNITY (e); its sole and exclusive Nature of the indemnity object is to procure for the assured indemnity, in the strictest afforded by sense of that word, for any losses he may sustain through the insurance. agency of those sea-risks against the effect of which the underwriter by the terms of his policy stands pledged to protect him. To prevent the assured from suffering loss by means of any of the perils insured against is the single aim of a contract of Marine Insurance, and its whole spirit would be violated if he could make the occurrence of any such casualties a means of gain, for this would be to give him an interest in procuring sea-losses, which would be opposed to every principle of commercial policy (ƒ). Hence an interest in the subject of insurance is of the very essence of the right to recover upon the contract (g). In the absence of such an interest the plaintiff is not damnified, although there may have been a total loss of the thing insured. extent of the 4. Indemnity, then, being the sole object of the contract Nature and of Marine Insurance, it becomes important to inquire into the indemnity. nature and extent of the indemnity it professes to afford. In France and some other foreign countries the contract In France. (e) This principle may, however, be violated by means of a valued policy, the valuation of the subject of insurance therein being in general conclusive against both parties. Therefore it has been said that "a policy of insurance is not a perfect contract of indemnity. It must be taken with this qualification, that the parties may agree beforehand in estimating the value of the subject assured, by way of liquidated damages, as, indeed, they may in any other contract to indemnify." Opinion of the Judges in Irving v. Manning (1847), 1 H. L. C. 287, 307; see also McArthur, Marine Ins. p. 68, where it is shown that in open policies on ship, in consequence of the recognized method of computing the value after a loss, (f) Assecuratus non quærit lucrum |