222 CHAPTER IX. OF THE SHIP. Reason why the ship must be named in the policy. Degree of accuracy required. 182. We have already seen that the name of the ship in which the voyage is to be performed must be accurately specified in every policy, on the ground that the underwriter has a right to be informed of everything material to the risk; the nature of which would obviously be very different upon ships of different degrees of seaworthiness. It has also appeared that, although the name must generally be inserted with accuracy, yet, as it is only required to be so inserted for the purpose of identifying the ship, an error in the name will be unimportant, if it can be clearly shown that the underwriters were not misled by it, but that they really intended to insure a risk to be carried on in the very ship on which the loss occurred, the principle being that nil facit error nominis cum de corpore constat (a). Accordingly, in our common policies, after the names of the ship and master, come the words, or by whatsoever other name or names the same ship, or the master thereof, is or shall be named or called." The following cases show the degree of accuracy practically required on this subject:-An insurance was effected on ship, as on a ship called the "Leopard;" it appeared that the name (a) See 1 Emerigon, 160: "Error nominis alicujus navis non attenditur, quando ex aliis circumstanciis constat de navis identitate." of the ship was in fact the "Leonard," and that she had never Sect. 182. been called the "Leopard;" it being proved, however, that the ship lost was the same that the underwriters intended to insure, the Court held, that by virtue of the above clause in the policy, the variance in the name had no effect on the validity of the insurance (b). So, where an American ship called the "President" was described in the policy as "the good ship called 'The American ship President;"" but it clearly appeared that the error had arisen from the blunder of the broker's clerk, and that the ship lost was really that on which the underwriters meant to insure, the error of name was held immaterial (c). And the decision of the Court was the same in another case, where a ship really called by the Spanish name of "Las Tras Hermanas," was described in the policy by an English translation of the name, as "The Three Sisters" (d). ship or ships." 183. When an insurer initials a slip, say for 5,000l., on hides, Insurance on goods "by by ship or ships, he engages in effect to insure the goods by any ship on which they are loaded; and if he afterwards at the request of the broker initial a slip for 2,4457. on hides by the "Socrates," making no enquiry as to the particular ship proposed, this second slip being expressly made in order to be substituted for the slip "by ship or ships" already mentioned, the jury are justified in finding that, regardless of what might be the name of the ship, he meant to insure the goods at a premium already fixed in the first slip, by the vessel on which these goods were really shipped (e). It happened that at another interview between other clerks of the broker and underwriter respectively, a policy for 1217., on part of these same goods by the "Socrates" was negotiated; (6) Hunter v. Molineux, before Lee, C. J. (1744), cited in 6 East, 385. It appears, from the judgment in Ionides v. Pacific Ins. Co. (1871), L. R. 6 Q. B. at p. 683, that, apart from the clause, "or by whatsoever name, &c.," the decision would have been the same. (c) Le Mesurier v. Vaughan (1805), 6 East, 382. (d) Clapham v. Cologan (1813), 3 Camp. 382. (e) Ionides v. Pacific Fire and Mar. Ins. Co. (1871), L. R. 6 Q. B. 674; L. R. 7 Q. B. 517. Sect. 183. and reference was made to Veritas, at the time lying on the desk, for the name and description of the ship, and when it was found that Veritas contained the "Socrates, Albertson," a new Norwegian ship, and the "Socrate, Jean Card,” an old French ship, the underwriter's clerk asked whether it was the Norwegian ship that was proposed, and he was told by the other he thought it was. The event showed that the goods had been loaded on the French ship the "Socrate, Jean Card," and that there was a total loss; it was held that the underwriter was not liable on the policy for this loss, for he had been misled, and that upon an enquiry materially affecting the amount of the premium, into insuring goods by the Norwegian ship "Socrates" (f). Again, news calculated to make the underwriter cautious about undertaking risks, or about undertaking them except at an enhanced premium, may have come to hand; he may have heard of storms, of losses, and of facts affecting particular ships; and consequently it is necessary that he should be able to identify the proposed ship in order to apply this information (g). 184. Moreover, there are degrees of seaworthiness. Emerigon () accordingly has employed himself in pointing out the varieties of build and size specifically designated by technical words, as (in our language) by ship, bark, brig, schooner, sloop, and the like; and he has truly said that if the underwriter is fraudulently misled by the designation adopted for the vessel to suppose that he is insuring goods on board a ship, when the vessel intended is in size and rig a sloop, the policy would be void. But as the generic designation ship is used, probably invariably, in English policies for vessels of every build, it is difficult to see how, apart from fraud, any question of misrepresentation by the mere use of the generic term can arise. (f) See note (e), ante, p. 223. (g) See Bates v. Hewitt (1867), L. R. 2 Q. B. 595. intended to As the amount of hazard incurred on any ship is very Sect. 184. greatly increased by her being employed as a privateer or A ship letter of marque, Emerigon considered, upon the principle be used in a above laid down, that a ship intended to be so employed service ought dangerous ought to be described accordingly in the policy by which she to be so described. is insured (¿); but it is quite certain that if it were verbally represented to the underwriter that such was her destination, this would be sufficient in this country. effect of board ship or ships." Policies." 185. Cases frequently occur in the extended operations of Object and commerce in which it is utterly impossible, or would be insurance on highly injurious, to compel the insertion in the policy of the goods "on name of the ship. A merchant who has ordered goods from abroad may be "Floating anxious to effect an immediate insurance on them, while he is ignorant of the particular ship by which they may be sent. In time of war, when merchant vessels are obliged to take such opportunities of sailing as the varying fortunes of the hostile parties chance to afford, this uncertainty is, of course, considerably increased. By the laws and practice of all maritime states, it is allowable under such circumstances to effect a policy on goods "on board ship or ships," upon condition of declaring as soon as the assured becomes aware of it, and, if possible, before the loss, the name of the ship or ships on board of which they have actually been loaded (k). "The contract of an underwriter who subscribes a policy on goods by ship or ships to be declared is, that he will insure any goods of the description specified which may be shipped on any vessel answering the description, if any there be, in the policy, on the voyage specified in the policy, to which the (i) 1 Emerigon, c. vi. s. 3, p. 165. (k) In England the legality of this practice was declared, as far back as 1794, to be too well established to be disputed. Kewley v. Ryan (1794), 2 H. Bl. 348. In France it has been ably explained by Emerigon, c. vi. VOL. I. 8. 5, "Assurance in quovis," vol. i. Sect. 185. assured elects to apply the policy. The object of the declaration is to earmark and identify the particular adventure to which the assured elects to apply the policy. The assent of the assurer is not required to this, for he has no option to reject any vessel which the assured may select, nor is it necessary that the declaration should do more than identify the adventure, and so prevent the possible dishonesty of a party insured, who might intend to apply the policy to particular goods, so that they should be at the risk of the assurers, and he should come on them if there was a loss; and then, when those goods had arrived safely, to pretend that he intended to apply the policy to another set of goods still subject to risks” (1). of ignorance of the ship's This mode of 186. This mode of insuring, however, being an exception to insuring amounts to a the general rule, which requires the name of the ship in every representation case to be stated in the policy at the time of its subscription, can only be allowed in those cases in which the party effecting the insurance is bonâ fide and in fact ignorant of the name of the ship or ships by which the goods insured have been consigned. name. Floating policies. It amounts, indeed, to a representation of such ignorance; and therefore, if a party who has adopted this mode of insurance knew, at the time of effecting the policy, the name of any one of the ship or ships on board of which the goods insured were really loaded, the withholding such name would vitiate the policy (m). Policies of this nature are called "floating policies." They are very largely used by merchants at the present day, not (1) Per Lord Blackburn in Ionides v. Pacific Ins. Co. (1871), L. R. 6 Q. B. 682, cited with approval in Davies v. National Fire Co. of N. Z., [1891] A. C. 491. For an instance of such "possible dishonesty," see Rivaz v. Gerussi (1880), 6 Q. B. D. 222. (m) Lynch v. Hamilton (1810), 3 Taunt. 37; confirmed in error in Lynch v. Dunsford (1811), 14 East, 494. It should be noted, however, that in this instance there was a report to the effect that the ship in question had suffered a mishap. Her name, therefore, was a material fact of which the underwriters were entitled to be informed. See per Lawrence, J., 3 Taunt. at p. 38. The point for which the case was cited by Arnould is expressly declared by Mansfield, C. J., to be left undecided. See 3 Taunt. at p. 35; see also Knight v. Cotesworth (1883), 1 Cab. & Ell. 48. |