Sect. 333. policy," said the learned Lord Justice, "that contribution only applies where it is an insurance by the same person having the same rights, and does not apply where different persons insure in respect of different rights. The reason of that is obvious enough. Where different persons insure the same property in respect of their different rights, they may be divided into two classes. It may be that the interest of the two between them makes up the whole property, as in the case of a tenant for life and remainderman. Then if each insures, although they may use words apparently insuring the whole property, yet they would recover from their respective insurance companies the value of their own interests, and of course those values added together would make up the value of the whole property. Therefore it would not be a case either of subrogation or contribution, because the loss would be divided between the two companies in proportion to the interests which the respective persons assured had in the property. But then there may be cases where, although two different persons insure in respect of different rights, each of them can recover the whole, as in the case of a mortgagor and mortgagee. But wherever this is the case it will necessarily follow that one of these two has a remedy over against the other, because the same property cannot in value belong at the same time to two different persons. Each of them may have an interest which entitles him to insure for the full value, because in certain events, for instance, if the other person becomes insolvent, it may be he would lose the full value of the property, and therefore would have in law an insurable interest; but yet it must be that if each recover the full value of the property from their respective offices with whom they insure, one office must have a remedy against the other" (e). Godin v. London Ass. Co. 334. The following case was quoted by Arnould as a good illustration of the principle: Meybohm, of St. Petersburg, was in debt for advances (e) North British, &c. Ins. Co. v. London, Liverpool & Globe Ins. Co. (1877), 5 Ch. D. 583. both to Amyand, of London, and to Tamesz, of Moscow. Sect. 334. Under these circumstances, Meybohm wrote to Amyand, who was then in expectation of a consignment from him, to the effect that he should send him goods, as per invoice, and directing him to insure. Amyand, accordingly, who had already insured to a certain extent on the expected consignment, effected a further insurance, thus making the aggregate sum insured by him more than sufficient to cover the full value of the consignment, but less than the amount of the balance then due to him from Meybohm in account. Meybohm shipped the goods as per invoice, but instead of indorsing the bill of lading to Amyand he indorsed it to Tamesz, to whom at that time he was also indebted to a greater amount than the value of the goods shipped. Tamesz subsequently procured a policy to be effected with the London Assurance Company, by Godin & Co., to the full value of the goods, the brokers informing the company of the prior insurance by a prior consignee and that both parties wished to be safe. The ship and goods having been lost, the Court (the judgment of which was delivered by Lord Mansfield) held that Tamesz could recover the full amount of his insurance (ƒ). this case. That Tamesz, indeed, as indorsee of the bill of lading and Remarks on in advance to Meybohm to a greater amount than the sum insured in the policy, had a clear insurable interest to the full extent of his claim, and therefore might recover the whole sum insured, is a position that can hardly be disputed. Whether Amyand could also recover on the policies effected by him was a point not before the Court, and therefore not decided. Lord Mansfield intimated a pretty clear opinion that he could, on the ground that, as a factor to whom a balance was due, he had under the circumstances an insurable interest distinct from the interest of Meybohm. At all events, his Lordship was clear that, assuming Amyand to (f) Godin v. London Ass. Co. (1758), 1 Burr. 489; 1 W. Bl. VOL. I. 103; 2 Park, Ins. 603 et seq.; 1 DD Sect. 334. have insured as agent only, he had a lien on the policies to the extent of his general balance. Discovery of over-insur ance. Arnould thought that Lord Mansfield was right in both points, notwithstanding the doubts of Marshall as to the former position (g); but that it is, perhaps, safer on the whole to consider the case as a mere illustration of the undoubted principle, "that where each of two parties, having distinct interests in the subject to its full value, insures upon it to its full value, independently of the other, it is not a case of double insurance" (h). 66 Mr. Maclachlan maintains, however, that Amyand would not have been able to recover on his policy. Amyand," he says, "prima facie at the moment of the shipment had an insurable interest, and he was justified, therefore, in insuring on his own account. But Meybohm held in his hand the power of diverting the goods from Amyand, and exercised this power by indorsing the bill of lading to Tamesz for a debt greater than the value of the goods. That was the annihilation of any insurable interest held by Amyand, without the intervention of any of the perils insured against, and made his policy thenceforward of no effect" (i). The conclusion that at the time of the loss Amyand had ceased to have an insurable interest seems sound, and Lord Mansfield's opinion to the contrary is, of course, only an obiter dictum (k). 335. To enable the defendant to discover whether there be in any case a double or over-insurance, he may, by the 19 Geo. 2, c. 37, s. 6, call upon the plaintiff to declare in writing within fifteen days what sum he has insured on the whole, and how much he has borrowed on bottomry and respondentia for the voyage in question, or any part of it. No means are provided in the Act of compelling the (g) 1 Marshall, Ins. 145. Judge Duer, vol. ii. p. 163, n., cites Godin v. London Ass. Co., with other cases, as an authority for the position that the insurable interest of a factor or consignee is limited to his advances constituting a lien on the property. delivery of this declaration, though Marshall thought the Sect. 335. Court would probably, after the expiration of the fifteen days, stay the proceedings in the action till a satisfactory declaration were delivered (1). This provision seems not to have been often put into use, perhaps because in most cases the underwriter has been able to obtain the information he required by the order for discovery of ship's papers (m). (7) 2 Marshall, Ins. 702. (m) See as to this order, post, vol. ii. Part IV. 404 CHAPTER XIII. VALUATION OF INSURABLE INTERESTS. Theoretical principle of valuation for the purposes of insurance. Applied to insurance on ship and freight. 336. THE next point to be considered is the mode of estimating the insurable value of the interest at risk, with a view to procuring indemnity for the assured in case of loss. Insurance being a contract of indemnity, it should seem that the true principle upon which the interest protected by a policy of insurance ought to be valued, is that which in case of loss will give the assured, as nearly as possible, a complete indemnity against the consequences of such loss. The object, therefore, of such valuation ought in theory to be to place the assured, in case of loss, in exactly the same situation as he would have been in if no loss had taken place. To apply this principle to the case of ship, goods, and freight. 337. The ship, in view of modern commerce, is regarded by the shipowner, generally speaking, not so much as an instrument for carrying on his own traffic, as in itself a source of emolument, either by being used as a general ship for the purpose of carrying goods for freight, or by being let out on hire at a stipulated sum under contracts of Wear and tear affreightment. Out of such freight or hire the shipowner of the ship, |