12. "For and in the names of all persons to whom the same Sect. 12. doth, may, or shall appertain, in part or in all." Assignment clause. The insertion of this clause, which is invariably introduced into all our common printed forms of policy, is of great importance, as without it no one could take advantage of the policy except the party expressly named in it, or his principal (g); but by the aid of this clause, as we shall have occasion to see more at large hereafter, any party may avail himself of the policy who can prove that he was interested in the subject-matter of the insurance during the risk and at the time of loss, and is either the person upon whose account the insurance was bonâ fide intended to be made, or a person to whom the benefit of it was assigned. An assignee of the policy may by statute sue in his own name (h). lost" clause. 13. As policies are frequently effected on ships and goods "Lost or not believed to be in foreign ports, or at sea, it being then uncertain whether they may not actually have been lost before the policy was effected, these words, "lost or not lost," are inserted in every form of policy as a matter of course. not in all cases necessary. The clause, however, though never omitted, does not appear This clause to be, in all cases, strictly necessary, as there can be no reason why a previous loss of the subject insured should prejudice an insurance subsequently effected, if at the time the assured were ignorant of the loss, or he and the underwriter were equally cognizant thereof (i). Accordingly, it has been decided by the Supreme Court of the United States that the phrase "lost or not lost" is not necessary to make a policy retrospective. "It is sufficient," said the Court, "if it appear (a) Browning v. Provincial Ins. Co. of Canada (1873), L. R. 5 P. C. 263. (h) 31 & 32 Vict. c. 86, s. 1. This statute does not, like the Judicature Act, make notice of assignment necessary. See post, s. 176. (*) See 1 Marshall, Ins. 338-340 ; 1 Phillips, Ins. s. 925; 3 Kent's Comm. 258, n. (c); Parsons, Ins. 44; Lord Denman in 3 A. & E. 307; per Bramwell, B., Stone v. Sect. 13. by the description of the risk and the subject-matter of the contract that the policy was intended to cover a previous loss" (k). It has been decided that a policy containing this clause was good, where the subject of insurance was accepted for insurance, and the premium paid, before loss, although the policy was not executed until after a loss had happened, to the knowledge both of the assured and the underwriter (7). A policy with this clause affords indemnity losses. If indeed the loss, at the time of effecting the policy, were known to the assured only, then, on the plainest general principles, the policy would be void; but no case has determined that an underwriter, who chooses to effect a policy with full knowledge that the loss has actually happened, may not be bound by it (m). A policy, indeed, containing this clause, is, in the words of Parke, B., “clearly a contract of indemnity against all against past past as well as all future losses sustained by the assured, in respect of the interest insured" (n). Accordingly, where on a policy on goods "lost or not lost" the pleadings raised the question, whether it was any answer to an action on such policy that the plaintiff did not acquire an interest in the goods till after an average loss by sea damage, the Court held that it was not (o). Such a contract, they considered, "operated just in the same way as if, the plaintiff having purchased goods at sea, the defendant, for a premium, had agreed that if the goods, at the time of the purchase, had sustained any damage by the perils of the sea, he would make it good" (p). (*) Insurance Co. e. Folsom (1873), 18 Wallace, 237; S. C. Folsom r. Mercantile Mutual Ins. Co. (1871), 8 Blatchford, 171; 9 ibid. 201. (7) Mead v. Davison (1835), 3 A. & E. 303; S. C. 4 Nev. & Man. 701. The report in Adolphus & Ellis represents the loss as an average one only; that in Nevile & Manning states that, before execution, an average, and subsequently a total, loss had occurred; the difference does not So, also, when a policy of re-insurance, lost or not lost, Sect. 13. was effected on a ship, supposed to be overdue, but which had actually arrived, the Court of Appeal held that the risk extended to the whole voyage insured, and that, as it had attached, the assured was not entitled to a return of premium (2). 14. In the case of a voyage policy the underwriter cannot Description of the voyage know the nature of the risk he is asked to insure, nor, con- insured. sequently, the amount of premium he ought to require, unless he knows the nature of the voyage on which the ship is to sail, or the goods are to be conveyed. It is therefore one of the most essential requisites of a policy of insurance, that it should contain an accurate description of the voyage insured. By this is meant, not that it should describe the whole course of the voyage to be actually taken by the ship; the track which she is to pursue through the waters; the straits she is to pass; the islands which she is to leave on the one side or the other; the capes she is to double; the reefs and shoals she has to avoid :-all this is supposed to be so familiar to the underwriter from his acquaintance with the course of the trade and navigation which the insurance is designed to pro the case of a total loss by an actual destruction of the whole or part of the goods that are the subject of the contract of sale. Where such a loss has occurred, the purchaser, in proportion to its extent, is exonerated from his contract, and it is by the seller, not by himself, that the loss must be sustained. As it is not a risk to which he is subject he cannot cover it by an insurance"; 2 Duer, 7. These remarks are completely borne out by the observations of Coleridge, J., in delivering the judgment of the Court of Exchequer in Hastie v. Couturier (1853), 9 Exch. 109: “If the goods had been totally lost before the contract of purchase was made, there would not be an insurable interest, as a person cannot buy a thing that is totally lost." It appears, (9) Bradford v. Symondson (1881), The voyage need only be Sect. 14. tect, that it is never expressly inserted in any policy. All that is necessary to be expressed in the policy is the place or described by period at which the voyage insured is to begin, and the place or period at which it is to end, and which are called in technical language, the terminus a quo and the terminus ad quem of the voyage insured, or of the risk. its termini. Time policies. Description of the subject insured. These termini must be expressed with great care and distinctness in the policy, and any failure herein will, as we shall see hereafter, have the effect of vitiating that instrument ). We shall here only mention, by way of explaining the language of the instrument, the distinction between insuring with the words "at and from" a place, and simply insuring “from” it. An insurance expressed in the policy to be "from A. to B." only protects the subject insured from the moment of the ship's sailing from A. (s): an insurance "at and from" protects the subject insured during her stay at the terminus a quo and after she has sailed from it (f). As it is especially desirable, in cases where a ship is expected to arrive at a certain port abroad, to protect her during her whole stay in such port from the moment of her arrival, the form of insurance "at and from "ought always to be adopted in insuring homeward voyages; indeed, in English policies, from the many advantages it presents, it is the form almost always employed in practice. What precedes is applicable chiefly, if not entirely, to voyage policies; time policies, instead of the termini of the adventure, contain here the limits of the period over which the insurance is to extend. 15. It is a rule, founded on very plain principles, that every contract of insurance ought distinctly to specify the subject intended to be insured, whether it be ship, goods, (r) Molloy, book ii. c. 11, s. 14, as cited 1 Marshall, Ins. 328. See also Syers v. Bridge (1780), 2 Dougl. 527. (*) 1 Marshall, Ins. 260. (t) Per Lord Hardwicke in Motteux v. London Ass. (1739), 1 Atkyns, 548. freight, profit, money advanced on bottomry and respondentia, Sect. 15. disbursements, or other interest. printed clause The clause in the common printed form of policy, in which The common the subject-matter of insurance is set forth, is as follows:- is only ap"Upon any kind of goods and merchandises, and also upon the body, tackle, apparel, ordnance, munition, artillery, boat, and other furniture of and in the good ship or vessel," &c. This clause is, in terms, only applicable to the case in which the same party being interested in both ship and cargo wishes to insure both in one common policy: the reason of this is, that in the earlier ages of maritime commerce, when our present form of policy was framed, merchants employed their own ships to carry on their own trade. Now, however, the trade of the ship-owner has become a distinct business from that of the merchant, and this clause, as it stands in the common printed form of policy, is wholly inadequate, without alteration, to meet the exigencies of modern commerce. Instead, however, of providing different forms to meet the various cases of insurances on ship or cargo separately, on freight, on profits, and other interests now held capable of protection by insurance, the English underwriters adhere to the old form, and for the requisite particularity of description resort to the expedient of writing in the body, at the foot, or on the margin of the policy, a statement of the real nature of the subject-matter intended to be insured (as, e. g., "on profits," "on freight," " on bottomry," "on disbursements," "on 100 bales of cotton, marked, &c."), leaving the printed clause entirely unaltered. The written words thus inserted in the body, margin, or at the foot of the policy, apply indefinitely to the whole instrument, and control the sense of the general printed clause applicable to ship and goods, and narrow it in point of construction to the particular species of interest, whether "ship," "goods," "freight," "profit," &c., the name of which is so inserted (u). The policy, in fact, becomes a (u) Per Lord Ellenborough, Robertson v. French (1803), 4 East, 130, 140; per Lord Penzance, Dudgeon v. plicable to an ships and insurance on merchandise. How this rendered applicable to other subjects of insurance. clause is |