Sect. 15. policy on that subject alone; and in suing thereon no notice need be taken of the formal printed clause as to ship and goods (x). Name of the ship. Principle as "The meaning of this marginal memorandum," says Lord Ellenborough, in a case where the written insertion was in the margin of the policy, "may be translated thus:-We mean to insure the subject so named 'freight,' for instance, arising and accruing during the limits of the voyage within described, from the carriage of goods on board the ship within mentioned, against the perils within enumerated, and upon the premium herein specified" (y). Whether the mere indorsement on the back of the policy of such written description of the subject of insurance, without reference on the face of it to such indorsement, would have the effect of thus controlling the policy, may be doubted; unquestionably it would do so, if referred to in the body of the policy, or initialed by the underwriters (≈). 16. As the nature of the risk depends very materially on the character of the ship employed, it is of great importance to the underwriter to know the name of the ship on which the insurance is to be effected, or on which the property insured is to be embarked. Hence, as a general rule, in all insurances, whether on ship or goods, the name of the ship ought to be accurately inserted in the policy. Yet, if the underwriter really know what ship is intended, since the purpose of inserting the name is answered in fact, an error in the name of the ship will not vitiate the policy. On ne doit pas pointiller sur le nom du navire, pourvu que l'erreur qui s'y est glissée n'empêche pas d'en reconnaître l'identité (a). Hence, immediately following the blank left in our common policy for inserting the name of the ship or master come the words, "or by whatsoever other name or names the same ship or the master thereof is or shall be named and called." Sect. 16. ship or ships. As, moreover, circumstances may frequently arise, especially Insurance on in case of shipments made from abroad, in which the merchant, though desirous of protecting his goods by an immediate insurance, may be utterly ignorant of the particular vessel by which they may be consigned to him, a relaxation of the rule requiring the insertion of the name of the ship in the policy is in such cases permitted; and the party insuring is allowed to effect the policy on his property "on board any ship or ships," on condition of declaring, as soon as he becomes aware of it, the name of the ship or ships on board which it has actually been loaded (¿). 17. The name of the master, like that of the ship, ought, Name of the if known, to be truly inserted in the policy, and that for the master. same reason, viz., that the safety of the adventure is in some degree dependent on the character of the master. As, however, many occasions may arise in the course of the voyage which may make it necessary to change the master, and in cases of insurance on "ship or ships" at sea, or from a distant port, the name of the master for the time being may not be known, in our common form after the blank left for the name of the master these words follow: "or whoever else shall go for master in the said ship" (e), and the words already cited, "or by whatsoever name or names the same ship or the master thereof is or shall be named or called." (b) The legality of the insurance on ship or ships was declared, more than a century ago, to be too well established by usage and authority to admit of dispute. Kewley v. Ryan (1794), 2 H. Bl. 348. In France an insurance of this nature is called 'assurance in quovis," and is ex pressly permitted by the Code de (e) The French effect the same Sect. 18. Duration of the risk; on goods; on ship. 18. In the ordinary form of policy the duration of the risk on ship and goods is described in the following clause, the blanks in which must be filled up according to the nature of the adventure which the party effecting the policy wishes to insure. "Beginning the adventure upon the said goods and merchandises from the loading thereof on board the said ship [at A. ]upon the said ship, &c. [at and from A.], and so shall continue and endure, during her abode there, on the said ship, &c.; and further until the said ship, with all her ordnance, tackle, apparel, &c., and goods and merchandises whatsoever, shall be arrived at [B.], upon the said ship, &c., until she hath moored at anchor twenty-four hours in good safety, and upon the goods and merchandises, until the same be there discharged and safely landed." The meaning of this clause, when stripped of its verbiage, is, that the risk upon the goods is to commence from their being loaded on board the ship wherever that may be; to continue upon them during the whole time they remain on board, and not to terminate until they have been discharged from the ship and safely landed at the port of delivery. The risk upon the ship is to commence at the port from which she sails on the voyage insured, wherever that may be, to continue during her stay there, and not to terminate until after she has moored at anchor for twenty-four hours in good safety at her port of destination. The effect of this clause, however, depends, of course, upon the mode in which the blanks are filled up (d). The multifarious exigencies of commerce in a country like our own, which lead our merchants and ship-owners to engage in enterprises almost infinitely varied, require the same diversity in describing as is displayed in undertaking them; and policies are accordingly filled up in every variety of form, as we shall have occasion to see more at length when we come to consider the construction put from time to time by our (d, See Robertson v. French (1803), 4 East, 130. Courts upon the loosely drawn and imperrterly expressed Sers. 25. clauses by which our mentants be alanced et värst the old policy to the wildpere led score di modem times. By statute a policy of ses insurare is a wild it specifies the particular risk or sirectore 19. The course of the ship's navigation is as we have seen. Liberry 20 never in terms expressed in any ply. It ict condition of every policy, as we shall see more st Lange bereafter, that the ship, in saling between the termini de voyage insured, shall pursue that ourse or track while ling usage has established to be the safest ti most bet mode of navigation, without deviating from it to talk at sty ports or places whatsoever which He between the extreme points of the voyage, unless express liberty for that purpose be insertel in the policy. As very few voyages, however, occur, in which it is not desirable that the ship should have the power of touching at intermediate ports, the common printed form of policy invariably contains this clause: "And it shall be logfil for the said ship, &c., in this royage to proceed and sail to and touch and stay at any ports or plices whatsoever [ withe of prejudice to this insurance." The blank which is left is for the purpose of specifying the particular ports and places at which it is intended this liberty shall be exercised; and the various modes in which this blank may be filled up, together with the numerous cases decided on the construction of this clause in the policy, will be referred to hereafter under the head of Deviation. clause. 20. The said ship, &c., goods and merchandises, &c., for Valuation so much as concerns the assured, by agreement between the assured and assurers in this policy are and shall be valued at (ƒ) [ (-) Stamp Act, 1891, s. 93 (3). (f) The words "as under" were here written in, and the following ]. blank was not filled up; lower down Sect. 20. Description of subject of insurance in valuation clause. This clause is in all the common printed forms of policy, though the blank it contains is not always filled up; if filled up, the policy is called a valued policy; if not filled up, an open policy. When inserted, the value ought to be, but frequently is not, the real value of the ship or the prime cost of the goods at the time of effecting the policy, together with the amount of the shipping charges, premiums, and other expenses of the insurance (g). As will appear from the language of the clause, this valuation is agreed to be final and conclusive "between the assured and assurers on the particular policy; and consequently it cannot be set aside (). But, as will appear hereafter, the contract is vitiated by an over-valuation which is fraudulent, or so excessive as to make the contract a mere wager (i), or which is material to be disclosed (), yet has in fact been concealed (1). It is not unfrequently the case that where the interest intended to be insured requires a more specific description than that contained in the general printed form, such description is inserted in this clause; as, e.g., the said ship and goods, &c., "are and shall be valued [at one thousand pounds, being on of the policy, following the 3 per valued policy. Wilson v. Nelson (9) Stevens on Average, Pt. ii. (h) Barker v. Janson (1868), L. R. 3 C. P. 303; Woodside v. Globe Marine Ins. Co. (1895), 1 Com. Cas. 237. (i) Per Lord Mansfield, Lewis v. Rucker (1761), 2 Burr. 1167, 1171; Irving v. Manning (1847), 1 H. L. C. 287, 307. (k) Ionides v. Pender (1874), L. R. 9 Q. B. 531; see also the questions left by Mathew, J., to the jury in Herring v. Janson (1895), 1 Com. Cas. 177. (1) Arnould (2nd ed. p. 30) says that the valuation "cannot be set aside, except in cases of fraudulent or excessive over-valuation." It is not, however, strictly correct to say that the valuation can be set aside. In some Continental countries this can be done, and another valuation substituted; but according to English law the valuation cannot be altered. Only in the cases mentioned in the text the policy can be entirely avoided. See post, Part I. Chap. XIII. 8. 341 et seq. |