.... and engine stores. 220. The bunker coals and engine stores of a steamship Sect. 220. necessary for the voyage are, no doubt, covered by an in- Bunker coals surance for a voyage in the common form on the "body and other furniture" (p). When the insurance is for time, it seems that proper effect will be given to the words quoted by allowing the policy to cover a reasonable quantity of coals and stores, regard being had to the service on which the ship is engaged, and average adjusters usually allow such a quantity. In Roddick v. Indemnity Mutual Marine Insurance Co., Roddick v. Indemnity the question arose whether a time policy on the "hull and Mutual Mar. machinery" of a steamship covered her bunker coals and stores. Ins. Co. Evidence was given that in a voyage policy an insurance on hull covers, according to the practice of underwriters, the coals and stores necessary for the voyage described in the policy. Kennedy, J., however, held that, in a time policy at any rate, they were not covered by the term "hull" (q), and this judgment was affirmed in the Court of Appeal (r). Further, the learned judge thought that, even in a voyage policy, this extended meaning of the word "hull" could not be adopted, and both Lord Esher and Smith, L. J., seem to have been of the same opinion (s). It may be remarked, however, that policies simply on hull and machinery are not common. There are often words in the policy which show that the intention was to insure such stores, &c., as would be covered by a policy in the ordinary form. 221. The "boat" is included by name as part of the ship The boat. in the common policies of insurance; hence, in a policy on ship in the common form upon the "body, tackle, apparel, munition, ordnance, boat, and other furniture" of the ship, Lord Lyndhurst would not admit evidence of a usage to show that underwriters never paid for boats outside the ship slung upon the quarters, on the ground that, though "usage may (p) See Lowndes, Ins. 2nd ed. 8. 65; McArthur, 57; Gow, 46. (2) [1895] 1 Q. B. 836, (r) [1895] 2 Q. B. 380. (8) [1895] 1 Q. B. 842; 2 Q. B. 384, 386. Sect. 221. be admissible to explain what is doubtful, it is never admissible to contradict what is plain" (t). What is covered by a general in surance on "goods" or "merchandise." Successive cargoes same voyage. In this case it had been proved on the part of the plaintiffs that such slinging of the boat on the quarters was proper and necessary in in voyages of the description insured against: if it could be shown that the boat was carried in any way which, while exposing it to extraordinary risk, was not proper and necessary on the voyage insured, it might fairly be considered that, as in the case of goods carried on deck, the underwriter would not be liable unless informed by the policy of the nature of the risk. Thus, in a case decided in the United States it seems to have been assumed that, if it could be clearly shown that carrying boats slung at the stern davits, besides being a dangerous, was also an unusual mode of carrying them on the voyage insured, the underwriter, under the common form of policy, could not be liable for their loss (u). 222. It is unnecessary, in most cases, for the merchant who wishes to insure his merchandise against sea risks to do more than give a general description of it as "goods goods" or "merchandise." Under such a policy, in case of loss, the merchant would, in general, recover for any goods of his which ultimately proved to be on board at the time of the loss (). Hence it is laid down by the French jurists, and apparently shipped in the on sound principles, that if, under such a general form of course of the insurance, the ship, in the course of the voyage insured, and under liberty given her for that purpose in the policy, touches at an intermediate port, and there lands the goods which were on board at the commencement of the risk, and takes on board others on account of the assured, such substituted goods are comprehended under the general words of the policy, and their value is recoverable in case of loss (x). (t) Blackett v. Royal Exch. Ass. Co. (1832), 2 C. & J. 244, 250. (u) Hall v. Ocean Ins. Co. (1839), 21 Pick. 472; cited 1 Phillips, s. 465. (v) Pour que telle assurance soit valable, il suffit que l'aliment du risque existe lors du sinistre. 1 Emerigon, c. x. s. 1, p. 296. (x) Emerigon, ibid.; see also 3 Boulay-Paty, Droit Com. Mar. tit. x. s. 6, p. 384. So, in this country, although after a policy has been once Sect. 222. effected on a particular subject of insurance, it cannot, in consequence of the stamp laws, be so changed in its terms as to be made to attach on a totally different subject, "Yet it is not to be inferred from hence," says Lord Ellenborough, "that shifting or successive cargoes on board the same ship, in the course of the same continued adventure, as in the African and other trades, out and home, may not properly be the subject of insurance under the word 'goods'; for in some of these cases the successive cargoes-i.e. (1) of English goods; (2) African articles of traffic; and, lastly, West India produce are, according to the course of such trading adventures, one continued subject-matter of insurance under the one name of 'goods'" (y). to leakage, contraband 223. The law of France is, that goods subject to deteriora- Goods subject tion or leakage must be specifically described in the policy perishable' (except where the assured is ignorant of the nature of the articles, and cargo at the time of effecting the insurance); otherwise no loss is recoverable upon such goods under the general description. The same rule is extended to perishable articles and to contraband of war, by the laws of other foreign states (z). No such rule exists in this country. As to articles liable to leakage or deterioration, the underwriters, by the common memorandum, expressly exempt themselves either from all liability for particular average losses, or from liability for such losses not amounting to a certain percentage. As to contraband of war, although the underwriter would not be held liable unless he were told of the nature of the intended risk, yet it has never been decided that the contraband character of the cargo must be specified in the policy. (y) Hill v. Patten (1807), 8 East, 373, 377; see also Tobin v. Harford (1863), 32 L. J. C. P. 134; in error (1864), 13 C. B. N. 8. 791; 34 L. J. C. P. 37. (z) Ord. de la Marine, 1. iii. t. 6, art. 31; Code de Commerce, art. 355; 1 Emerigon, c. x. s. 2, pp. 302-307. See the Commercial Codes of Bel- are insurable general policy under a in this Sect. 224. Bullion, coin and jewels put on board for the purposes of commerce. Bank notes and bills of exchange. 224. Considerable doubt appears at one time to have been entertained whether money, bullion or jewels could be insured under the general denomination of "goods, wares and merchandise." This doubt, in all probability, arose from mistaken theories of the balance of trade, which led to the notion that all exportation of such commodities, as articles of trade, was detrimental to the common weal. There is now, however, no doubt that, when put on board as merchandise, they may be insured, in this country, under the general description of goods and merchandise (though in actual practice they are generally insured under a specific description); it being at the same time understood that the underwriter is not liable for the risk of a clandestine exportation (a). The laws of some Continental states require these commodities to be specifically designated in the policy (b). Bank notes and bills of exchange should, it seems, be specifically described (c). A policy "on goods" means only such goods as are merchantable (merces), i.e., cargo put on board for the purposes of commerce (d). Hence the captain's clothes are not covered by a general policy on goods and merchandise, nor the ship's provisions (e), even though the ship carries nothing but passengers (ƒ). (a) For an instance, see the case of Da Costa v. Firth (1766), 4 Burr. 1966. "Goods, wares and merchandise" will cover dollars, if entered at the custom-house: per Dampier, J. (1815), in Manning's Dig. Index to N. P. Rep. 164, n. 5, 2nd ed.; see also 1 Magens, art. 15, p. 10. Phillips points out (vol. i. s. 432) that there is no reason for this exception of clandestine trade which is made by the text-writers, saying that the fact that the trade is prohibited appears to involve the question of concealment, or the legality of the contract, rather than that of the sufficiency of the description. (b) Dutch Code, art. 596; Spanish Code, art. 745. (c) Per Dampier, J., Manning's Index, 165; Palmer v. Pratt (1824), 2 Bing. 185. (d) So stated by underwriters in Ross v. Thwaites, before Lord Mansfield (1776), 1 Park, 23, 24; and so defined by Best, C. J., in Brown v. Stapylton (1827), 4 Bing. 121. "Wares or cargo for sale," per Lord Ellenborough in Hill v. Patten (1807), 8 East, 375. See, however, Wilkinson v. Hyde, infra. (e) Ross v. Thwaites (1776), 1 Park, 23. The same rule applies, it is submitted, to the personal effects of other persons on board, unless (f) Brown v. Stapylton (1827), 4 Bing. 119, 122. 1 pro Sect. 224. "In merchandise," says Park, J., “is included all perty of great value, unless attached to the persons of the Money and jewels passengers" (g). Thus jewels, ornaments, cash, &c., not attached to designed for trade, but carried about, or belonging to the the person. persons of those on board, do not (as the better opinion seems to be) fall within the general description of goods and merchandise; and in case of loss would not, it seems, be recoverable under a policy on goods in the general form (). are not covered by a general policy "on goods," unless usage, there is a 225. Goods carried on deck, as they are exposed to a Goods on deck greater hazard than goods carried in the ordinary way, are not covered by a general insurance in the common form on goods and merchandise (i); if, indeed, they are so carried by virtue of a general custom of the particular trade on which the insurance is effected, the underwriter is presumed to be acquainted with such usage without having notice of it, and therefore may fairly be supposed to undertake the risk of their being so carried on deck. As, however, the custom only applies to certain descriptions of goods in any trade, it may be doubtful whether, even in this case, the goods ought not to be specifically described in the policy, in order that the underwriter may be apprised that he is to run the extra risk. In the only case in which the point directly arose, the insurance was declared by the policy to be "on forty carboys of vitriol" (k). The observations of Lord Lyndhurst on this Observations Eagle Ins. Co. (1827), 4 Pick. 429. (h) See 1 Park, Ins. 30; 1 Marshall, Ins. 327; 1 Emerigon, c. xii. s. 42; and c. x. s. 11. shipped as cargo. See 1 Parsons, Ins. 521. It was not disputed in Wilkinson v. Hyde (1858), 3 C. B. N. S. 30; 27 L. J. C. P. 116, that a policy on goods covered an emigrant's outfit. In Duff v. Mackenzie (1857), 3 C. B. N. S. 16; 26 L. J. C. P. 313, the master insured his clothes, charts, instruments, &c., as master's effects, and this seems the proper way to describe them. Provisions are covered by the common policy on ship. Stevens on Average, 60; ante, s. 219. (g) Brown v. Stapylton (1827) 4 Bing. 122; and see S. P., as to provender of live stock, Wolcott v. of Lord Lyndhurst. |