Vide ante, P. I.

to perform. It was indeed observed in the first chapter of this work, that although the policy is not subscribed by the insured, yet there are certain conditions to be performed on his part, with as much good faith and integrity as if his name appeared at the foot of the policy: otherwise it is a dead letter, and he can never recover an indemnity for any loss which he may happen to sustain.

OF

CHAPTER XVI.

Of changing the Ship.

C. I.

F those causes which will operate as a bar to the insured's recovering upon a policy of insurance against the underwriter, the first to be mentioned is that of changing the ship; or, as it has commonly been called, changing the bottom. This will require but very little discussion. We formerly Vide ante, said, that, except in some special cases of insurances upon ship or ships, it was essentially requisite to render a policy of insurance effectual, that the name of the ship, on which the risk was to be run, should be inserted. That being done, it follows as an implied condition that the insured should neither substitute another ship for that mentioned in the policy before the voyage commences, in which case there would be no contract at all; nor during the course of the voyage remove the property insured to another ship, without the consent of the underwriter, or without being impelled by a case of unavoidable necessity. If he do, the implied condition is broken, and he cannot recover a satisfaction, in case of a loss, from the insurer; because the policy was upon goods on board a particular ship, or upon the ship itself; and it becomes a material consideration in a contract of insurance, upon what vessel the risk is to be run: since one may be much stronger, and more able to resist the perils of the sea; or by its swift sailing, much better able to escape from the pursuit of an enemy, than the other.

Malyne, it is true, in his Lex Mercatoria, appears to be of a Mal. Lex different opinion; for he says, "It sometimes happens, that Merc. 118. "upon some special consideration, this clause forbidding the "transferring of goods from one ship to another is inserted in "policies of assurance; because in time of hostility or war be"tween princes, it might be unladen, in such ships of those " contending princes, by which the adventure would be in

"creased.

Molloy, 1. 2. c. 7. S. II.

Roccus de
Assecurat.
No. 28.

"creased. But according to the usual insurances which are "made generally without an exception, the assurer is liable "thereunto; for it is understood, that the master of a ship, "without some good and accidental cause, would not put the

66

goods from one ship to another, but would deliver them, ac66 cording to the charter-party, at the appointed place." The reason given by Malyne, in support of his position, is by no means satisfactory, nor is it well founded in point of experience: neither has he adduced a single authority to corroborate the opinion advanced. Indeed, the whole current of authority turns the other way: at least, as far as I have been able to trace it.

Molloy has said, that if goods are insured in such a ship, and afterwards in the voyage she becomes leaky and crazy, and the supercargo and master, by consent, become freighters of another vessel for the safe delivery of the goods: and then after she is loaded the second vessel miscarries, the assurers are discharged. It is true, the sentence proceeds thus: "If these words be in"serted, namely, the goods laden to be transported and delivered "at such place by the said ship, or by any other ship, or vessel, "until they be safely landed, the insurers must answer the mis"fortune." But this does not at all affect the general rule before laid down; for it only goes to shew that which is not denied, that the parties may take a case out of the general rule of law, by a special agreement: and the exception proves the truth of the first proposition. Besides, in such a case, it should seem that the ship, in which the goods are laden, ought not to be changed, but upon necessity.

This opinion is confirmed by foreign writers. "Merces "si eâdem navigatione transferantur de unâ navi in aliam, "et si novissima navis, ubi merces transfusæ fuerunt, deper❝datur, tunc est inspicienda forma assecurationis, in quâ si "fuit dictum, quod assecurentur merces, quæ sunt in tali navi, "tunc assecurator non tenetur, eo quod mentionem fecit in "assecuratione de tali navi. Et ratio est, quia non par est "ratio assecurationis, quando merces devehuntur in uná navi, et Stracca glos. quando in alterâ; imo solet id principaliter considerari inter "ipsos assecuratores, cum una navis sit magis fortis quam alia." Roccus is corroborated by several learned writers upon this branch of jurisprudence.

Santer, de
Assecurat.
P. 3. n. 35.

8. n. 10.

rell, 2 Stra.

In the law of England, there is only one case to be met with in print upon the subject; and that is not expressly in point to the present enquiry, although it seems to decide it. It was a case which came on at Guildhall before Lord Chief Justice Lee. The plaintiff had insured interest or no interest on any Dick v. Barship he should come in from Virginia to London, beginning the adventure on his embarking on board such ship; the money to be paid though his person should escape, or the ship be retaken. He embarked on the Speedwell; but she springing a leak at sea, he went on board the Friendship, and arrived safe at London; but the Speedwell was taken after he left her. And now, in an action against the underwriter he was held liable; for the insurance is on the ship the plaintiff' set out in and had that got safe home and the other been lost, the plaintiff could not have recovered upon the ground of having removed his person into that ship in the middle of the

voyage.

From this case it appears, that although no ship was named in the policy, yet the moment the ship was ascertained by the embarkation of the insured, the contract was at an end, provided the second ship had been lost; for so the words in Italics expressly import. A fortiori, therefore, the insured could not be entitled to recover, upon a change of the bottom, when the name of the vessel is expressly mentioned in the very instrument by which the contract is effected.

And

although the insured, notwithstanding the change of bottom, recovered in the case cited from Strange; it may be accounted for in two ways, consistent with the doctrine advanced in this chapter. In the first place, it was a gaming policy, interest or no interest; and the plaintiff was entitled to recover the moment the ship was taken, although he might perhaps not be interested at all; or perhaps the effects insured might be left in the first ship, although the plaintiff removed his person; in which case even at this day, upon a fair bond fide policy, he would be entitled to recover from the underwriters a satisfaction for the loss he had sustained.

The general doctrine relative to changing the bottom of the ship was alluded to by Lord Mansfield, when delivering the opinion of the Court in the case of Pelly against the Royal

Exchange

Vide ante,

c. 2. p. 67.

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Exchange Assurance Company, which has already been fully reported in a preceding chapter. "One objection," said His 1 Burr. 351. Lordship," was formed by comparing this case to that of changing the ship or bottom, on board of which goods are "insured; which the insured have no right to do. (a) For there "the identical ship is essential; that is the thing insured. But "that case is not like the present."

From this passage it is evident, that Lord Mansfield intended to confirm the principle advanced in this chapter, namely, that when an insurance is made on a specific ship, and the insured not being impelled by any necessity, without the consent of the underwriter, changes the ship in the course of the voyage, he has not kept his part of the contract, and cannot recover against the underwriter.

(a) This is to be taken as a rule, subject to the exception of inevitable or urgent necessity; for it has been held, that the owners of goods insured, by the act of shifting the goods from one ship to another, do not preclude themselves from recovering an average loss arising from the capture of the second ship, if they act from necessity, and for the benefit of all concerned. Sec Plantamour v. Staples, Term Rep. 611, note (a), and ante, Chap. 1.