A fortiori concealment and misrepresenta tion. Kirby v. Smith. Mackintosh v. thence on the 17th, which arrived at London on the 31st, was a material concealment in respect of these dates by the broker who effected a policy on the ship in question on the 21st of February, at which time, considering the average duration of the voyage from Seville to London, she was a missing ship.' If there be, not merely concealment, but a positive or virtual misrepresentation of the time of the ship's sailing, that, à fortiori, vitiates the policy in all cases where a true and full disclosure would have led the underwriter to infer that the ship was then a missing ship. The ship Ocean sailed from Elsinore for Hull, in rough weather, on the 26th of July; six hours after, her owner sailed from Elsinore for Hull in another ship. This is a voyage sometimes of four or five days, but on the average of eight or ten. Owing to tempestuous weather, the owner of The Ocean did not arrive at Hull till the 9th of August, or fourteen days after leaving Elsinore; and then, finding The Ocean had not arrived, he immediately caused his broker to effect an insurance on her "at and from Elsinore to Hull, from the 26th July inclusive." The broker, at the time of effecting this policy, did not communicate any more of the above facts than that The Ocean was "all well at Elsinore on the 26th of July." The Court held that this was a concealment fatal to the policy." A Liverpool merchant, on whose account a quantity of train oil was to be shipped at St. John's, Newfoundland, on board The Elizabeth, wrote on the 27th of January to his brokers in London to effect an insurance, telling them "that he had advices from St. John's of the 27th of December, of the train oil being shipped for him on board The Elizabeth, to sail the end of the month." The real facts were:-1st. That he had received no advices of that date from St. John's, but had been merely told, that intelligence from St. John's down to the 27th had come to hand, which made no mention of the sailing of The Elizabeth; and 2nd. That before giving the order to insure, he had received two letters from St. 1 Elkin v. Jansen, 13 M. & W. 655. 2 Kirby v. Smith, 1 B. & Ald. 672. John's, both dated the 24th of December, but the second not sent till the 30th, in the first of which his correspondents stated that The Elizabeth was to sail on the 25th, that she was a new vessel, that he might endeavour to save the insurance by giving three or four days, according to the state of the weather in England; and in the second they said, "You can allow her from sixteen to twenty days; you can run a reasonable risk to save the insurance, but all will depend on the state of the weather." The insurance having been effected on the 27th January solely on the letter of instructions sent to the broker, the Court were clearly of opinion, that these facts showed both a positive mis-statement and a material concealment, either of them sufficient to avoid the policy.' The question, although noticed in the last case, but not settled, may still arise, whether circumstances which show that the assured was endeavouring to save the insurance by delaying to insure, ought to be communicated to the underwriter. There can be no doubt that, in all cases where it might reasonably be supposed likely to have the effect of leading the underwriter to infer that the ship was out of time when asked to insure her, the direction to delay the insurance ought to be communicated.' Wherever, in fact, it appears that the intention of the assured was not to effect the policy, till there was reason to suspect that the ship was a missing ship; the facts tending to show this ought to be communicated." Any circumstance, within the knowledge of the assured, Concealment of 1 Mackintosh v. Marshall, 11 M. & W. 116. 2 Prejudice and business are 80 alien and opposed that I should think anything in business likely to introduce prejudice most undesirable. Yet what other effect could be expected after such a communication as that endeavour to save the insurance had exhausted all reasonable delay? Notwithstanding what appears in Rickards v. Murdock, 10 B. & C. 540, to the contrary, I submit that the under- 3 See the dictum of Lord Kenyon facts that aggravate the risk. and not equally within the knowledge, or means of knowledge, of the underwriter, which affects the national character of the subject insured, and therefore exposes it to capture or detention, must be disclosed to the underwriters. Yet there may be facts of this nature most material to the risk, and not within the knowledge of the assured, or his means of information. Thus a ship, warranted Portuguese, Mayne v. Walter. was taken by a French privateer, and condemned because she had an English supercargo on board, on the ground of a recent French ordinance declaring all neutral ships liable to capture if the supercargo was the subject of a state at war with France; Lord Mansfield held that, as neither the assured nor the underwriters appeared to have known anything of this ordinance, the former was not guilty of a material concealment in not disclosing the fact of the English supercargo.' Private information of new regulations. His lordship, however, was of opinion that, though this ordinance was contrary to the law of nations, yet, if known to the assured, it would have been a material concealment not to have disclosed the fact of his non-compliance with it; and if, on the other hand, the underwriters had known of it, they ought to have inquired who was to be supercargo.2 A knowledge of the political state of the world, of the allegiance of particular countries, of their standing mercantile regulations, of the risk and embarrassment affecting the course of trade contemplated by the insurance, must all necessarily be imputed to the underwriter, and therefore need not be disclosed by the assured: but it has been held in the United States, and apparently on very good grounds, that the new or shifting regulations of foreign states, by which the property is exposed to seizure, if privately known to the assured, ought to be disclosed by him, for they cannot be presumed to be necessarily within the knowledge of the underwriter.3 1 Mayne v. Walter, 1 Park, Ins.431; 1 Marshall, Ins. 402, 471. 21 Marshall, Ins. 402, 471; see also Barzillay v. Lewis, 1 Marshall, Ins. 402, 404; and Marshall v. Union Ins. Co., Condy's Marshall, 473. 3 Hoyt v. Gilman, 8 Mass. Rep. 336; Blagge v. New York Ins. Co., 1 Caines, 549; 1 Phillips, no. 595, 596, 597; see also 2 Duer, 516, 561. All facts, however, lying peculiarly within the knowledge of the assured, which may expose the property to belligerent risks, ought to be disclosed to the underwriters. Thus, it has been held in the United States, that not disclosing that the property insured belongs to a house established and doing business in a belligerent state, will be a material concealment, and defeat a policy made in a neutral country "for whom it may concern;" so the not disclosing that enemy's property embarked in a neutral ship was covered as the property of a neutral, was there also held to be a material concealment vitiating the policy.2 Innes. Ship and goods, the property of an American subject, were Campbell v. insured "from London to certain ports in America against all risks, American capture and seizure included;" on arrival, the ship was seized by the American government, on account of a war with America, which had broken out before, but was not known till after the policy was effected: the fact that the assured was an American subject was not stated on the face of the policy, nor disclosed by the broker to the underwriter, and this was held by Lord Tenterden and the Court of King's Bench to be a suppression that vitiated the policy, since the fact, if disclosed, might have made a material difference to the risk.3 So, sailing without convoy, unless the ship be within the Without convoy. exception of the convoy statutes, is a material circumstance don. to be disclosed. A broker having applied to an underwriter Sawtell v. Louto effect a policy on the ship Sophia, from Bristol to Port Mahon, &c., with liberty to seek, join and exchange convoy in the English and Irish Channels; the underwriter stated, that a ship called The Sophia, of Bristol, was reported at Lloyd's as being then at sea without convoy; the broker afterwards was informed by his employer that this was the same ship: this letter however was not communicated, and the Court 1 Bauduy v. Union Ins. Co., 2 Washington's C. C. Rep. 391, cited 1 Phillips, no. 624. See, however, Buck v. Chesapeake Ins. Co., 1 Peter's Sup. C. Rep. 151; 1 Phillips, no. 625. 2 Stocker v. Merchants' Fire and Marine Ins. Co., 6 Mass. Rep. 210; 1 Phillips, no. 629. 3 Campbell v. Innes, 4 B. & Ald. 423. Long v. Duff. Reid v. Harvey. The state of the ship on the Voyage. Da Costa v. Durrell v. held that, as the ship in question was not within any of the exceptions of the convoy act, the concealment was fatal to the policy.1 If the ship was foreign built, and, therefore, not within the scope of the convoy act, the fact of her having sailed without convoy need not have been communicated, nor yet the fact that she was foreign built, or otherwise excepted from the operation of the act; for it is the duty of the underwriter to obtain such information for himself." Where an insurance was effected on goods to return five per cent. for convoy and arrival; the non-communication of the fact that the vessel was to be a running ship (of which the assured was aware), was held fatal to the policy.❜ All material information communicated to the assured with regard to the state of the ship in the course of the voyage, unless, indeed, relating to matters covered by the warranty of seaworthiness, ought to be disclosed whether it be certain intelligence or doubtful rumours. And as there is no warranty of seaworthiness in a time policy, matters that would otherwise have been covered by such a warranty, if concealed will avoid the policy." One that had a doubtful account of a ship like his own being captured, caused his own to be insured without communicating what he had heard, and the insurance was held to be void." A policy was effected on the 24th of March on a privateer, which had sailed from Jersey on the 6th, and reports in Jersey that some French frigates were about the coast, and had made a capture on the 7th, continued to prevail and receive credit until the plaintiff sent the orders on which the insurance was effected, yet he had not said a word about them in his letter; this was held to be a material concealment 1 Sawtell v. Loudon, 1 Marshall's R. 99; 5 Taunt. 359. Long v. Duff, and Long v. Bolton, 2 B. & P. 209. 3 Reid v. Harvey, 4 Dow's P. C. 97. Russell v. Thornton, 4 H. & N. 788; 29 L. J. (Ex.) 9; in error, 30 L. J. (Ex.) 69. 5 Da Costa v. Scandaret, 2 P. Wms. 179. |
