Imágenes de páginas
PDF
EPUB

Sect. 82.

where a ship insured with an association was lost, and the books showed that the sum due to the member for the loss had been assessed by the committee and paid by the members, it was held that there was a sufficient admission of liability in the books to enable the assured to recover without producing a stamped policy (»).

The practice is to insure by time policies from noon of the 20th of February, Greenwich time, or from noon of the date entered in the register of insurances, until noon of the following 20th of February. There is usually a rule which provides that the insurances shall be renewed from year to year on the 20th of February, unless either the member or the association gives notice to terminate the insurance in the manner and at the time prescribed by the rules (o).

There is almost always a rule declaring that no policy issued by the association shall be assigned, mortgaged, or disposed of, so as to pass any part of the beneficial interest in the policy, without the consent of the association endorsed upon the policy (p). Another usual rule provides that the association shall not be bound to take notice of the interest of any person, other than the member insuring, in any ship or insurance, unless a memorandum of the name and interest of such person has been endorsed on the policy with the consent of the association.

Usually the rules provide that the insurance shall cease on the death, insolvency, or lunacy of the member, or if the member mortgages the ship (2), unless a sufficient guarantee

Ship Ins. Co. v. Ashburner (1885),
54 L. J. Q. B. 377. See, however,
In re London Marine Ins. Associa-
tion, Smith's Case (1869), L. R.
4 Ch. 611.

(n) In re Teignmouth & General
Mutual Shipping Association (1872),
L. R. 14 Eq. 148; 41 L. J. Ch. 679.

(0) This rule has been held not to make a club policy a continuing policy beyond the day on which it is expressed to terminate. Lishman v. Northern Maritime Ins. Co. (1873),

[merged small][ocr errors][merged small]

for the payment of all contributions be given to the associa- Sect. 82. tion (). In general, also, the liability to contribute to future losses ceases on the loss or sale of the ship.

In case of a dispute between a member and the association with regard to a claim, the rules almost invariably make a reference to arbitration a condition precedent to the right of the member to bring an action (s).

83. The most characteristic feature of the system of Contributions. mutual insurance, viz., that the losses are divided among the members, has already been pointed out. Frequently an entrance fee is paid when a ship is accepted for insurance, and many associations require an initial premium to be paid every year in respect of each ship insured. When a claim for a loss has been allowed and there is no fund, such as the initial premiums, out of which it can be paid, the necessary sum is raised by a call on all the members. The contribu- How assessed. tions are assessed on them either in proportion to the amounts for which they are insured, or in proportion to the gross registered tonnage of their ships, as the rules prescribe. Sometimes in insurances on ships, contributions in respect of total and general average losses are levied on the amounts insured, while contributions for particular average losses are assessed according to tonnage.

losses or

Where an association was by the terms of its policies under Claims for liability only to the member, it was held that a part-owner contributions of a ship other than the member could not bring an action by or against on the policy for a loss (t). Similarly, it was held that an other than

to apply only to a ship mortgaged at the time when the insurance was made, and not to render a guarantee necessary when a ship was mortgaged afterwards. Hutchinson r. Wright (1858), 25 Beav. 444; 27 L. J. Ch. 834.

(r) See Hughes v. Tindall (1856), 18 C. B. 98.

(s) See Scott v. Avery (1855), 5 H. L. C. 811; 25 L. J. Ex. 308.

For the effect of a rule which pro-
vided that in certain events the deci
sion of the directors should be final,
see The Warwick (1890), 15 P. D.
189. An improper hearing by the
directors does not preclude a member
from bringing an action. Ibid.;
Edwards v. Aberayron Mutual Ship
Ins. Society (1876), 1 Q. B. D. 563.

(t) Montgomerie v. United King-
dom Mutual SS. Assurance Associa-
tion, [1891] I Q. B. 370.

part-owners

members.

Sect. 83.

association could not bring an action for contributions against a part-owner, as the undisclosed principal of the managing owner who had become a member of the association in respect of the ship, when the policy was expressed in a form which made the member only liable upon it (u). Where, however, the policy issued to the managing owners of a ship, who insured her in their own names, was an adaptation of Lloyd's policy, containing the clause "as well in his or their own names as for and in the name or names of all and every other person to whom the same doth, may, or shall appertain, &c.,' it was held that the other owners could be sued for contributions, as being the persons insured by the policy (x).

[ocr errors]

The result of the cases is that, generally speaking, under the rules and policies of the associations, the owners of a ship, who authorize a person to effect an insurance with and to become a member of an association, are liable, as assured, to be sued for contributions. They ought, therefore, on general principles to be able themselves to enforce claims for losses; but the rules often provide that claims can only be enforced by the member. The question whether the owners who authorize the insurance are themselves members was raised but not decided in one of the cases. "It may be," said Lord Esher, "that the defendants" (the assured) "are members for the purpose of paying contributions, though not for the purpose of voting, and that they are not liable to contribute to the expenses of the association other than in respect of losses of other ships insured" (y). Subject to any special rules of

(u) United Kingdom Mutual SS. Ass. Association v. Nevill, C. A. (1887), 19 Q. B. D. 110. See per Lord Esher, M. R., 22 Q. B. D. 719.

(x) Great Britain 100 A 1 SS. Ins. Association v. Wyllie, C.A. (1889), 22 Q. B. D. 710; following Ocean Iron SS. Association v. Leslie (1887), ibid. 722, n.; British Marine Mutual Ins. Co. v. Jenkins, [1900] 1 Q. B. 299.

[blocks in formation]

the particular association, it is submitted that this is a correct view of their position.

84. Sometimes compliance with a rule which is incorporated in a policy is expressly made a condition precedent to the liability of the association (~). Whether a rule, not expressed to create a condition precedent, is a warranty, depends on its nature. Thus a rule providing that ships should not sail on certain voyages between certain dates was held to be a warranty. In the same case the Court said that a rule which provided that a vessel beaching before or after a specified time was not entitled to recover for any subsequent loss until surveyed and reported sufficient, was an exception as to the damage taking place between the beaching and the survey (a).

(-) See Stewart v. Wilson (1843), 12 M. & W. 11. See Sailing Ship Dewa Gungadhur Co. v. United Kingdom Maritime Mutual Ins. Association (1886), 2 T. L. R. 366, for a decision on a rule providing that the insurance should cease if the member neglected to pay calls. In Williams v. British Mutual Marine Ins. Co. (1887), 3 T. L. R.

314, the Court of Appeal held that
the member could set off against a
call a loss, the amount of which had
been adjusted, and that the associa-
tion could therefore not forfeit the
policy for non-payment of the call.

(a) Colledge v. Harty (1851), 6 Ex.
205; 20 L. J. Ex. 146. See also
Harrison v. Douglas (1835), 3 A. &
E. 396.

Sect. 83.

[blocks in formation]

All persons may be in

sured except

Who is for commercial purposes an Alien Enemy

..90-100

85. ALL persons, whether aliens or British subjects, may be insured, with the exception of alien enemies; that is, persons alien enemies. who, either by birth or domicil, belong to a state actually engaged in war with our own.

alien enemies.

This restriction is an obvious consequence of that universally recognized principle in the law of nations, viz., that the object of a maritime war is the destruction of the enemy's commerce and navigation, in order to weaken and destroy the foundations of his naval power. As marine insurance has for its object the protection of commerce and navigation, it would obviously be inconsistent with the very purposes of a maritime war, to permit insurances on the shipping and trade of the enemy. "Hostium enim pericula in se suscipere, quid est

aliud quam eorum commercia maritima promovere ?” (a).

Lord Mans- It was for a long time, however, an unsettled question in field upheld insurances by English law, whether the insurance of enemy's property was or was not illegal at common law. Lord Hardwicke, in the year 1749, said it had never been declared in our courts to be unlawful () and Lord Mansfield supported the practice, not apparently upon any principles of law (c), but on fancied grounds of expediency; supposing that English underwriters would thereby gain more in premiums than they would lose

(a) Bynkershoek, Quæst. Jur. Publ., 1. 1, c. 21.

(b) Henkle v. Royal Exch. Co. (1749), 1 Ves. Sen. 317, 320.

(c) Buller, J., said that he never could get him to give any opinion as to their legality. Bell v. Gilson (1798), 1 B. & P. 345, 354.

« AnteriorContinuar »