Sect. 189. the goods on board the "Elizabeth."

Of changing the ship.

In insurances on ship.

The "Elizabeth'

arrived safe in Liverpool: the "Heart of Oak," on board of which the second cargo ultimately turned out to have been shipped, was totally lost on the voyage. Both ships had sailed before the 1st of August, the time warranted for sailing in the 7001. policy (c). The plaintiffs' claim for a total loss under this policy was resisted, mainly (d) on the ground "that, as a ship, answering the description in the 7007. policy, and having on board property of Freeland and Rigby to the full amount therein insured, had arrived, this policy, being on ship or ships, might and ought to be applied to that ship, and was satisfied." The Court, however, held, that the assured had clearly a right to apply such an insurance to whatever ship they thought proper, within the terms of it; and were therefore, under the circumstances, entitled to recover the whole sum therein insured (e).

190. It is an implied condition of the policy, that the ship named therein, should not, after the commencement of the risk, be changed without necessity or the consent of the underwriters; for such unnecessary or unsanctioned change of the ship produces an alteration of the risk, and therefore exempts them from liability (ƒ).

If the policy be upon ship, it is clear that the liability of the underwriters will be at an end directly the specific subject of insurance has been wholly lost, as by foundering at sea; or wholly destroyed as a ship, either by shipwreck or irreparable damage. In insurances on ship, therefore, the rule is, that the total loss, whether actual or constructive, of the original ship will give the assured on ship a right to claim the full amount of the sum insured, either with or without notice of abandonment, as the case may be.

(c) Henchman v. Offley (1782), 2 H. Bl. 346. Marshall omits this circumstance, 1 Ins. 168.

(d) The other ground was the illegality of insurances on ship or ships, as to which, however, the Court entertained no doubt.

(e) Kewley v. Ryan (1794), 2 H. Bl. 343; 1 Marshall, Ins. 168.

(f) Upon this subject, generally, consult Emerigon (c. xii. s. 16, vol. i. pp. 419-425), who discusses it with his usual masterly display of research and reasoning; see also Pothier, d'Assurance, Nos. 68, 69, 70, 71.

charge the

191. It is only, therefore, in policies upon other subjects of Sect. 191. insurance, as, for instance, goods, freight, profits, &c., that In policies on goods, &c., a any question as to the effect of changing the ship can possibly change of arise. With regard to these it may be laid down, that if ship will diseither before the commencement of the voyage or during the underwriters. course of it, the ship named in the policy be changed without necessity, or without the consent of the underwriters, they will be discharged from their liability (g). This rule holds good even though the substituted ship may be of larger dimensions or greater strength than that originally named in the policy (h); for, by the fact that a given ship is named in the instrument, the underwriter has a right to say that he had some peculiar reasons for insuring a risk on that very ship which would not apply to any other.

On the same ground, if without consent or necessity the cargo is either shifted from the ship named in the policy to one as good or better, or is originally loaded on board the latter instead of on board the ship named, and both ships perish on the voyage, yet the underwriter shall be discharged from all liability, for the policy never attached upon the goods loaded on board the substituted ship (¿).

Thus, if the underwriter has agreed to insure three several parcels of goods, each of the value of 1,000l., one on board the "St. Joseph," another on board the "Triton," and a third on board the "Syren," making together 3,0007., but the merchant afterwards loads these parcels all on board the "St. Joseph," the underwriter will only be liable upon the policy effected on goods on board the "St. Joseph," and that only to the extent of 1,0007.; and as to the remaining 2,0007. he will be discharged, although all the three ships may have equally perished in the course of the voyage (k).

192. If, however, the underwriters consent to the change of ship, or if in the course of the voyage the ship becomes so

(g) 1 Emerigon, c. xii. s. 16, p. 419. See post, s. 468.

(h) Emerigon, ibid. 420.

(i) Pothier, No. 68, p. 111, par

Estrangin; Emerigon, ibid. 421.
(k) Pothier, d'Assurance, No. 68;
Code de Commerce, art. 361; 4
Boulay-Paty, Droit Mar. 132.

Unless it be

by consent, or

under necessity.

Sect. 192. disabled as to be incapable, by any means at the master's disposal, of being repaired at all, so as to take on the cargo, the master, as agent for all concerned, may procure another ship in which to forward the cargo to its port of destination; and in such case the change of ship does not discharge the underwriters, on goods, freight, or profits, from their liability for loss on the subjects insured, which may occur subsequently to such change of ship. Many cases will occur in the later part of this work, under the head of Constructive Total Loss of Goods and Freight, which will serve to illustrate this position: we shall also have occasion, in considering the duties of the master, to discuss those cases of necessity which give him the right, if they do not impose upon him the duty, of forwarding the goods in another ship. This position was first established in this country by the case of Plantamour . Staples (7), and has ever since been recognized (m.) It is apprehended that, even where goods are insured "on board ship or ships," there is no general right to tranship. As soon as the shipment has taken place, the effect is the same as if the ship selected had been expressly named in the policy (n).

(Z) (1781), 1 T. R. 611, n.; S. C., 3 Dougl. 1.

(m) See the rule further discussed

infra, s. 207 et seq.; and cf. Shipton
v. Thornton (1838), 9 A. & E. 314.
(n) See infra, s. 468.

master.

193. Ir is not intended, in this place, to enter at any of the length into those general duties and obligations of the master, in regard to the conduct of the ship, which more properly form part of a professed treatise on shipping; nothing more is proposed than to notice such points only, in respect to the master, as have a bearing more or less direct on the subject of sea insurance; and to this end we will consider—(1) The naming of the master in the policy, and subsequently changing him; (2) His power, in a port of distress, of hypothecating the cargo, or selling part of it, in order to repair the ship; (3) His power, in certain cases, to sell the ship or the whole cargo; (4) His power, in case the first ship is disabled, of sending on the cargo in another; and (5) The relation in which he stands to the assured and to the underwriter in case of abandonment.

the master in

194. After the blank left in our common printed forms of Of naming policy for the name of the master come the following words: the policy, or whosoever else shall go for master in the said ship, or and of subsequently by whatsoever other name or names the said ship, or the changing master thereof, is or shall be named or called."

him.

Sect. 194.

What change of master vitiates the policy.

From this clause it is abundantly evident, that it is no implied condition in our English policies either that the master should be correctly named, or that the same master should continue on board throughout the voyage.

The law is the same in France (a). Emerigon, however, limits the generality of the words "or whosoever else shall go for master" to this extent, that they shall not apply to a master who is of any other nation, especially in time of war, so as to increase the risk of the underwriters, by substituting a belligerent as master instead of a neutral (b). This limitation seems very reasonable, and, should the case ever arise, would no doubt be ratified in our Courts.

Subject to this limitation, there seems no doubt that another master may be substituted to command the ship, instead of him who is named in the policy, without the consent of the underwriters, and before the commencement of the voyage; provided always that the change be made in perfect good faith, and the substitute be competent (c). If the substitution can be shown to have been effected for any fraudulent purpose, it will, of course, vitiate the policy (d).

If in the course of the voyage, from death, disability, or other necessary cause, the master originally named in the policy be rendered incapable of acting, or if he abandon his command, the substitution of another captain in such case of necessity will, of course, make no difference to the policy (e). Even in such case the command cannot be delegated to a master of another nation, at any rate if such nation be at war with ours; nor, except in case of absolute necessity, if the ship be British, ought the appointment to be conferred on

(a) 1 Emerigon, c. vii. ss. 1, 2, 3, pp. 184-190.

(b) Ibid. p. 187; Boulay-Paty, in his Comment. ibid. p. 188, agrees with Emerigon in this construction of the clause.

(c) See Walden v. Firemen's Ins. Co. (1815), 12 Johnson's R. 128; 3 Kent's Comm, 257,

(d) Boulay-Paty on Emerigon, c. vii. s. 2, p. 189. Secus, however, where the owners were not themselves parties to the fraud. Cf. Dudgeon v. Pembroke (1874), L. R. 9 Q. B. 581.

(e) Emerigon, c. vii. s. 3, pp. 189, 190,