Sect. 4. In this country and States. used to be rigorously confined to an indemnity against such losses only as might be caused by the perils of the sea to some property of which the assured was actually in possession at the time of the loss; it was not allowed to extend to an indemnity against the loss of that gain or profit which the same perils prevented him from realising (h). In this country, however, and in the United States, a more in the United liberal policy has always prevailed, and the contract of Marine Insurance was always considered applicable to protect men, not only against such events as may occasion the deprivation of that which they may actually possess, but against those also which would intercept from them the advantage or profit which, but for such events, they would acquire in the ordinary and probable course of things (i). Interest exposed to risk indispensable to every contract of marine insurance. Hence in this country, as we shall see more at large hereafter, the loss arising from the interception, by the perils insured against, of future freight and expected profit is quite as legitimate an object of that indemnity which Marine Insurance can afford as the damage actually inflicted by the same perils upon ships or merchandise. 5. Not only, as we have already seen, must the assured have an interest in the subject of the insurance, but it is an indispensable requisite of every contract of Marine Insurance, properly so called, that the subject of the insurance should be exposed to the risk of loss from the perils insured against, upon the voyage or during the period over which the indemnity is by the terms of the contract made to extend (j). This is the most fundamental principle in the whole law of Marine Insurance. Principale fundamentum assecurationis (h) By a law of the 12th August, 1885, Articles 334 and 347 of the French Code de Commerce were amended, and now insurances may be effected on profits. The prohibition of insurances on freight was at the same time removed. See the present Article 334 of the Code. (i) Per Lawrence, J., in Lucena v. Crawfurd (1806), 2 B. & P. N. R. 301. (j) 1 Emerigon, c. i. s. 1, p. 6; 1 Benecke, System des Assecuranz, c. i. p. 23. est risicum seu interesse assecuratorum; sine quo non potest subsistere assecuratio (k). The contract of Marine Insurance, in short, is nothing but a contract of indemnity against the risk of loss by sea perils, and the premium is nothing but the price paid for this indemnity; it is obvious, therefore, that if the assured is not really interested in something which he runs the risk of losing by the perils of the sea, there is no consideration for the sum he has paid and as the foreign jurists express it, no matter on which the contract can work, for its very constituent element is the possibility of loss from marine casualties (7). With the commencement of exposure to the risk of loss by the perils insured against the policy is said to attach; and any loss that occurs earlier, let the cause be what it may, is uncovered. Therefore, if the subject of the insurance be totally lost before the policy has attached, the underwriter pays nothing; but he must return the premium received, because there has been a complete failure of consideration for what was otherwise a valid and binding contract. Sect. 5. 6. Thus it appears that two things are mainly essential to Distinction every contract of Marine Insurance : 1. An interest in the subject of insurance. 2. Exposure of that interest to risk of loss or detriment by sea perils. It is the necessity for these requisites which entirely distinguishes contracts of marine insurance, properly so called, from mere wagers upon the issue of maritime adventures. Such maritime wagers, although framed externally as policies of sea assurance, and therefore called wager policies, have, as we shall see more at large hereafter, been prohibited in this country by a solemn act of the legislature, and in (4) Casaregis, Disc. 4, No. 1, cited by Emerigon, ubi supra. (7) Si non adest risicum assecuratio non valet, nam non adest materia in quâ forma potest fundari, Roccus, No. 88. En un mot, la perte ou le between contracts of marine in surance and wagers. Sect. 6. most other maritime states are either expressly forbidden or practically disused: and this on the ground that it is plainly opposed to the true interests of a mercantile state to enable those who have no real stake in the safety of a maritime adventure to give themselves (by means of such a contract) a great interest in its loss or destruction. 7. THE instrument in which the contract of sea insurance What is a policy. is generally embodied is called a policy of insurance (a). ances must be In the interest of the revenue various Stamp Acts have What insurmade the use of stamped policies compulsory (b). The Stamp made by a Act, 1891, which repealed all the enactments then in force policy. relating to the stamping of policies, provides that a contract for sea insurance (other than such insurance as is referred to in the 55th section of the Merchant Shipping Act Amendment Act, 1862 (25 & 26 Vict. c. 63)) shall not be valid unless it is expressed in a policy (c). A policy of insurance is defined in the Act as including every writing whereby any contract of insurance is made or agreed to be made, or is evidenced" (d). For the purposes of the Act, the expression "policy of sea (a) From the Italian polizza d'asse curazione. (b) 35 Geo. 3, c. 63; 54 Geo. 3, c. 144; 30 Vict. c. 23. (c) 54 & 55 Vict. c. 39, s. 93 (1), re-enacting in substance the provision of 30 Vict. c. 23, s. 7, as to the stamping of the policy: see post, ss. 31-33. As to admitting an (d) 54 & 55 Vict. c. 39, s. 91. Cf. Sect. 7. insurance” (e) means any insurance (including re-insurance) made upon any ship or vessel, or upon the machinery, tackle, or furniture of any ship or vessel, or upon any goods, merchandise, or property of any description whatever on board of any ship or vessel, or upon the freight of, or any other interest which may be lawfully insured in or relating to, any ship or vessel, and includes any insurance of goods, merchandise, or property for any transit which includes not only a sea-risk, but also any other risk incidental to the transit insured from the commencement of the transit to the ultimate destination covered by the insurance” (ƒ). Further, the Act declares that a contract for sea insurance includes any agreement whereby "any person, in consideration of any sum of money paid or to be paid for additional freight or otherwise, takes upon himself any risk attending goods, merchandise, or property of any description whatever, while on board of any ship or vessel, or engages to indemnify the owner of any such goods, merchandise, or property from any risk, loss, or damage” (g). The insurances referred to in the 55th section of the Merchant Shipping Act Amendment Act, 1862 (), which therefore do not require a policy, are insurances by owners of ships against claims for (1) loss of life or personal injury caused to any persons carried in such ships, (2) damage or loss caused to any goods, merchandise, or other things whatsoever on board such ships, (3) loss of life or personal injuries caused by the improper navigation of such ships to persons carried in other ships or boats, (4) loss or damage caused by the improper navigation of such ships to any goods, merchandise, or other things whatsoever on board other ships and boats. (e)" Policy of sea insurance " (ƒ) 54 & 55 Vict. c. 39, s. 92 (1). (h) 25 & 26 Vict. c. 63, repealed by the Merchant Shipping Act, 1894. S. 55 is re-enacted in s. 506 of the Merchant Shipping Act, 1894. S. 54, which is referred to in s. 55, is in substance re-enacted in s. 503 of the later Act. |