and ought to be applied to that ship, and was satisfied: the court, however, held, that the assured had clearly a right to apply such an insurance to whatever ship he thought proper, within the terms of it; and was, therefore, under the circumstances, entitled to recover the whole sum therein insured. (s) In France, if the assured has effected an insurance to a certain amount" on goods on board ship or ships," and afterwards declares the names of the ships on board which his goods are shipped, but does not specify the precise sum which he means to insure on each ship, he may distribute this sum in what proportions he pleases among the different ships; and if any of them are lost on the voyage, the assured is entitled to claim from the underwriters for the full value of the property shipped on board the lost ships, although the value of the cargoes brought in those ships which have arrived exceed the whole amount of the insurance. (t) SECT. III. Of changing the Ship. Insurance on board ship or goods "on ships." Law in France as to this point. the ship. The ship, after ment of the § 79. It is an implied condition of the policy, that the ship of changing named therein, should not, after the commencement of the risk, be changed without necessity or the consent of the under- the commencewriters; for such unnecessary or unsanctioned change of the ship would produce an alteration of the risk run by the underwriters, and therefore, exempt them from their liability. (w) *If the policy be upon ship, it is clear that the liability of the underwriters will be at an end directly the specific subject of insurance has been wholly lost, as by foundering at sea; or wholly destroyed as a ship, either by shipwreck or irreparable damage. In insurances on ship, therefore, the rule is, that the total loss, whether actual or constructive of the original (s) Kewley v. Ryan, 2 H. Bl. 343. Marshall on Ins. 168. (1) Emerigon, chap. vi. sect. 5. vol. i. p. 174. ed. 1827; and Boulay-Paty's Commentary, ibid. 178. See also Code de Commerce, art. 361. and Boulay-Paty, Cours de droit Comm. Mar. tom. iv. sect. 21. pp. 130-136. ed. 1834. (w) Upon this subject, generally, consult Emerigon (chap. xii. sect. 16. vol. i. pp. 419–425. ed. 1827,) who discusses it with his usual masterly display of research and reasoning. See also Pothier, Traité d'Assurance, Nos. 68, 69, 70, 71. be changed without neces of the underwriters. In insurances struction of the on ship, the deoriginal ship sured on ship a gives the as right to claim a total loss. * 178 Of changing the ship. It is only on policies on other subjects of insurance that any ques- If at any time, the risk (whe ther before or after sailing,) the ship named in the policy be changed with ship, will give the assured on ship a right to claim the full amount of the sum insured, either with or without notice of abandonment, as the case may be. (x) It is only, therefore, in policies upon other subjects of insurance, as, for instance, goods, freight, profits, &c., that any question as to the effect of changing the ship can possibly arise. With regard to these it may be laid down — That, if either before the commencement of the voyage or during the course of it, the ship named in the policy be changed without necessity, or without the consent of the underwriters, they will be discharged from their liability. (y) So invariable is this rule, that it holds good even though the substituted ship may be of larger dimensions or greater strength than that originally named in the policy (z); for, by the fact that a given ship is named in the instrument, the underwriter has a right to say that he had some peculiar reasons for insuring a risk on that very ship, which would not ship may be of apply to any other. out necessity, or greater strength or burden than that named in the policy. 179* On the same ground, if without consent or necessity the cargo is either shifted from the ship named in the policy to one as good or better, or is originally loaded on board the latter instead of on board the ship named, and both ships perish on the voyage, yet the underwriter shall be discharged from all liability, for the policy never attached upon the goods loaded on board the substituted ship. (a) *Thus, if the underwriter has agreed to insure three several parcels of goods, each of the value of 1000l., one on board the St. Joseph, another on board the Triton, and a third on board the Syren, making together 3000l., but the merchant afterwards loads these parcels all on board the St. Joseph, the underwriter will only be liable upon the policy effected on goods on board the St. Joseph, and that only to the extent of 1000l., the sum insured thereon; and as to the remaining 20007. he will be discharged, although all the three ships may have equally perished in the course of the voyage. (b) (z) See post, Part III. Chap. III. (2) Emerigon, ibid. p. 420. (a) Pothier, No. 68. p. 111. ed. 1810. par Estrangin. Emerigon, ibid. p. 421. (b) Potheir, Traité d'Assurance, No. the ship. If however, the the ship, in the underwriters consent, or if course of the comes so disincapable, by any means at disposal, of voyage, be abled as to be the master's being repaired, so as to take on the cargo, the master may procure a suband the liability stituted ship; of the under If, however, the underwriters consent to the change of Of changing ship, or if in the course of the voyage the ship becomes so disabled as to be incapable, by any means at the master's disposal, of being repaired at all, so as to take on the cargo, the master, as agent for all concerned, may procure another ship, in which to forward the cargo to its port of destination; and in such case the change of ship does not discharge the underwriters on goods, freight, or profits, from their liability for any loss on the subjects they have insured, which may occur subsequently to such change of ship. Many cases will occur in the latter part of this work, under the head of Constructive Total Loss of Goods and Freight, which will serve to illustrate this position: we shall also have occasion, in considering the duties of the master, to discuss those cases of necessity which give him the right, if they do not impose upon him the duty, of forwarding the goods in another ship.' It was a position first established in this country, by the Plantamour v. case of Plantamour v. Staples (c), and has ever since been recognized here as an undoubted doctrine of insurance law, that if the original ship be disabled, and the master acting with a wise discretion, as the agent both of the merchant and the ship-owners, forwards the cargo in another ship, such *necessary and justifiable change of ship will not discharge the underwriter on goods, from liability for any loss which may take place on the goods subsequently to such transhipment. (d) ? 68. p. 111. ed 1812. Code de Commerce, art. 361. Boulay-Paty, Cours de droit Mar. tom. iv. sect. 21. p. 132. ed. 1834. ton, 9 Ad. & Ell. 314. The dictum of C. (e) Plantamour v. Staples. 1 T. Rep. contra, must now be considered as over611. note. S. C. 3 Dougl. 1. (d) See as to this rule Shipton v. Thorn ruled. writers on the goods, &c. will still continue. Staples. IT. Rep. 11. *180 1 Post, Ch. 8, § 3, p. 184 et seq. and notes. * See Schieffelin v. New York Ins. Co. 9 John. 21; 1 Phill. Ins. 485, 486; Treadwell . Union Ins. Co. 6 Cowen, 270; Saltus v. Ocean Ins. Co. 12 John. 107; Abbot, Ship. (6th Am. ed) 365, note; 3 Kent, (5th ed.) 257. Of the master. OF THE MASTER. It is not intended, in this place, to enter at any length into those general duties and obligations of the master, in regard to the conduct of the ship, which more properly form part of a professed treatise on shipping: nothing more is proposed than briefly to notice such points only, in respect to the master, as have a bearing more or less direct on the subject of marine insurance; and to this end we will consider 1. The naming of the master in the policy, and subsequently changing him. 2. His power of hypothecating the whole, or selling part of the cargo for the sake of the ship. 3. His power, in case the first ship is disabled, of sending on the cargo in another. 4. His power in certain cases to sell the ship or the whole of the cargo. 5. The relation in which he stands to the assured and to the underwriter in case of abandonment. Of naming the master in the policy, and of subsequently changing him. Before the commencement of the voyage another master (of the same nation) may be substituted for SECT. I. Of naming the Master in the Policy, and of subsequently changing him. § 80. After the blank left in our common printed forms of policy for the name of the master, come the following words: or whosoever else shall go for master in the said ship, or by whatsoever other name or names the said ship, or the master thereof, is or shall be named or called." From this clause it is abundantly evident, that it is no implied condition in our English policies either that the master should be correctly named, or that the same master should the policy, even continue on board throughout the voyage. him named in without the *The law is the same in France. (a) Emerigon, however, limits the generality of the words, "or whosoever else shall go for master" (ou autre pour lui), to this extent, that they shall not apply to a master who is of any other nation, especially in time of war; and he cites a case to show the manner in which, if understood without this limitation, this clause might increase the risk of the underwriters, by substituting a belligerent as master instead of a neutral. (6) This limitation seems very reasonable, and, should the case ever arise, would no doubt be ratified in our courts. Of naming the policy, and of subsequently changing him. *182 master in the express consent of the under But the substituted master the same nation, to avoid belligerent writers. should be of Subject to this limitation, there seems no doubt that another risks. master may be substituted to command the ship on which the insurance is effected, instead of him who is named in the policy, without the consent of the underwriters, and before the commencement of the voyage. As, however, it is reasonable to suppose that the underwriters can by no means be entirely indifferent as to the master by whom the ship is commanded, and upon whose skill or ignorance the nature of the risk they assume so materially depends, it will be incumbent on the assured only to make this change in perfect good faith, and to provide a substitute of competent skill. (c) If the substitution can be shown to have been effected for any fraudulent purpose, it will, of course, vitiate the policy. (d) What has preceded relates to a substitution of another master for him named in the policy before the commencement of the voyage; if, in the course of it, from death, disability, or other necessary cause, the master originally named in the policy be rendered incapable of acting, or if he abandon his command, the substitution of another captain in such case of necessity, will, of course, make no difference to the policy. (e) *Even in such case, the command cannot be delegated to a (a) Emerigon, chap. vii. sect. 1, 2, 3. vol. i. pp. 184-190. ed. 1827. (b) Ibid. sect. 1. p. 187. Boulay-Paty, in his Comment. Ibid. p. 188., agrees with Emerigon in this construction of the clause. 1 (c) See † Walden v. Firemen's Ins. Co. (e) Emerigon, chap. vii. sect. 3. p. 189 And the assured will not making this change, except he act in perfect good faith, and appoint a be justified in substitute of competent skill. A fraudulent change of master would dis charge the underwriters. from the death If in the course of the voyage disability of the original master, another be appointed, or this makes no difference in the liability of the under writer. * 183 1 See Copeland v. New England Marine Ins. Co. 2 Metcalf, 432. |