for the defendant at the first trial, proceed with one of his Sect. 1270. other actions. In modern practice, however, the consolidation order is not very much used. The plaintiff usually issues a single writ against one underwriter, and the result, apart from special circumstances, is treated by all parties as concluding the matter. 1271. There is one important point of practice which is Order for peculiar to actions on policies of marine insurance; this is the ship's papers. practice whereby the underwriter is entitled, as a matter of course, to an order against the assured, requiring the latter to discover on oath, and to produce, all the ship's papers. This practice appears to have been introduced about a century ago, at a time when the Courts of Common Law were unable to grant discovery, in order to relieve the underwriter of the necessity of going to a court of equity (f). Further reasons for the practice are that "the underwriters have no means of knowing how a loss was caused; it occurs abroad and when the ship is entirely under the control of the assured. addition to this the contract of insurance is made, in peculiar terms, on behalf of the assured himself and all persons interested, and who these persons are, especially at the time of the loss, is entirely unknown to the underwriters" (g). Nor was the practice of making the order on all parties interested, without an affidavit, altered by the Judicature Acts (h). In The order is very comprehensive in form and runs as follows (i)-"It is ordered that the plaintiff and all persons interested in these proceedings and in the insurance, the subject of this action, do produce and show to the defendant, his solicitors or agents, upon oath, all insurance slips, policies, letters, or instruction, or other orders for effecting such slips (f) See Goldschmidt v. Marryat (1809), 1 Camp. at p. 562, per Mansfield, C. J. (9) Per Brett, L. J., in China S.S. Co. v. Commercial Ass. Co. (1881), 8 Q. B. D. at p. 145. (h) Ibid.; and see also West of England Bank v. Canton Ins. Co. (1877), 2 Ex. D. 472. (i) App. K. to R. S. C. 1883, No. 19. Sect. 1271. or policies, or relating to the insurance or the subject-matter of the insurance on the ship or the cargo on board thereof, or the freight thereby, and also all documents relating to the sailing or alleged loss of the said ship, the cargo on board thereof and the freight thereby, and all letters and correspondence with any person or persons in any manner relating to the effecting the insurance on the said ship, the cargo on board thereof, or the freight thereby, or any other insurance whatsoever effected on the said ship, or the cargo on board thereof, or the freight thereby on the voyage insured by, or relating to the policy sued upon in this action, or any other policy whatsoever effected on the said ship, or the cargo on board thereof, or the freight thereby on the same voyage. Also all correspondence between the captain or agent of the vessel and any other person, with the owner or any person or persons previous to the commencement of or during the voyage upon which the alleged loss happened. Also all protests, surveys, log books, charter-parties, tradesmen's bills for repairs, average statements, letters, invoices, bills of parcels, bills of lading, manifests, accounts, accounts-current, accounts-sales, bills of exchange, receipts, vouchers, books, documents, correspondence papers, and writings (whether originals, duplicates, or copies respectively), which now are in the custody, possession, or power, of the said plaintiff and the said other persons as aforesaid, his, or their, or any or either of their brokers, solicitors, or agents, in any way relating or referring to the matters in question in this action, with liberty for the defendant, his solicitors, or agents to inspect and take copies of or extracts from the same or any, or either of them, and that in the like manner the plaintiff and the said other persons as aforesaid do account for all such documents as were once, but are not now, in his, their, or any or either of their possession, custody, or power, and that in the meantime all further proceedings be stayed, and that the costs of and occasioned by this application be 1272. It will be observed that this order is much more nature of the stringent than the common order for discovery made in an Sect. 1272. ordinary action, which only embraces such documents relating Stringent to the matters in question in the action as are or have been order. in the possession or power of the party. From the observations above cited of Brett, L. J. (k), it might have been inferred that the order would only be made against a shipowner, with the object of obtaining from him information of which he alone was possessed. But the terms of the order and the decisions thereon go far beyond such a limitation. Thus, it was held that the order was properly made against Made against mortgagees who had never sailed or been in possession of the mortgagees. vessel, and that it was not a sufficient compliance with the order for them to swear that they had no papers (1). The position was thus explained by Cleasby, B.:-" The interest of the plaintiffs is that of bare mortgagees. They have nothing to do with the sailing of the ship, they merely have an interest in the ship itself. The ship is lost; they bring this action. Is the underwriter entitled to call upon them. not only to make an affidavit and to produce that which they have which is nothing, from their interest being such as I have mentioned-but to cause these papers to be produced upon affidavit by the mortgagor, who, by permission of the mortgagee has sailed the ship, and who, I assume, would be the person in possession of all the ship's papers? I do not say that the mortgagees would be bound to produce through the mortgagor all those papers-we do not decide that-but at all events, they cannot say: 'We will do no more than make an affidavit that we have no papers ourselves, or none under our actual control.' No; they must go further, and endeavour to comply with the practice in substance, that is to say, they must endeavour to produce the ship's papers; they must satisfy us that they have made application to the mortgagor and have done what they can to place the defendant (k) See also per Cockburn, C. J., in Rayner v. Ritson (1865), 35 L. J. Q. B. at p. 61. (1) West of England Bank v. Canton Ins. Co. (1877), L. R. 2 Ex. D. 472. Sect. 1272. in the position of knowing what his defence to the action is" (m). Owner of goods and re-assured. Who can sue? Province of the jury. Usages. Similarly, the order is made against a plaintiff claiming on a policy on goods (»), and against an underwriter suing upon a policy of re-insurance (o). It is to be observed that the order will only be made where the case is really one of marine insurance. It has been refused where the transit covered was partly by sea and partly by land (p). 1273. Questions as to who are competent and proper parties to avail themselves of policies have already been sufficiently discussed (q). Speaking generally, persons in whose interest a policy has been effected, or to whom the policy has been properly assigned, can sue thereon, as well as the nominal assured. Questions sometimes arise, in cases of marine insurance, as to the respective provinces of judge and jury. It is within the province of the jury to determine questions of fact relating to the existence of mercantile usage, and to the use and meaning of mercantile terms. The customs of merchants, and the general and known usages of trade, when they have been ascertained and determined by a course of judicial decision, form part of the law merchant, and as such are thenceforward judicially noticed by the Courts (~). The usages, however of a particular trade (s), or of a par (m) Per Cleasby, B., L. R. 2 Ex. D. at p. 474. The judgments of the Court of Appeal in China SS. Co. v. Commercial Ass. Co., ubi supra, are to the same effect. For an instance where the Court was not satisfied that the plaintiffs had done their best to obtain papers, see London & Provincial Co. v. Chambers (1900), 5 Com. Cas. 241. (n) See per A. L. Smith and Chitty, L. JJ., in the case next cited. (0) China Traders' Co. v. Royal Exch. Ass. Corp., [1898] 2 Q. B. 187; overruling two recent Divisional (r) Barnett v. Brandao (1843), 6 M. & Gr. 630. (s) Pelly v. Royal Exch. Ass. Co. (1757), 1 Burr. 341; Noble v. Kennoway (1780), 2 Dougl. 510; Milward v. Hibbert (1842), 3 Q. B. 120. ticular place, as the usages at Lloyd's (t), must be proved by Sect. 1273. parol evidence to the satisfaction of the jury; and whether the parties to the contract must, from their place of residence, habits of business, or other circumstances, be taken to be cognisant of the usage at Lloyd's, is also a question for the jury (u), according to whose finding thereon the Courts hold the parties bound or not bound by the usage. It is, howin all cases for the Court to decide whether evidence of usage be admissible. ever, trade. 1274. The construction of the policy, when the meaning of Terms of its terms is ascertained, is for the Court; but the interpretation to be put upon technical terms (v), the extension given by mercantile usage to descriptions of ports or places named in the policy (a), and the construction of peculiar, novel, or unusual clauses by received practice or known usage (y), is for the jury. In these cases it is for the jury to say what the meaning of the expression is, but for the Court to decide what the meaning of the contract is (≈). and conceal The question of the materiality of a representation (a) or Materiality of concealment (b) is for the jury, though the Judge in such representation cases ought to take care that they are not misled by anything ment. that comes out in the evidence (c). The question whether a given ship be out of time on a given voyage seems exclusively a question for the jury (d). (t) Gabay v. Lloyd (1825), 3 B. & Cr. 793; Lawrence v. Aberdein (1821), 5 B. & Ald. 107. (u) Stewart v. Aberdein (1838), 4 M. & W. 211; Sweeting v. Pearce (1861), 7 C. B. N. S. 449; 9 ibid. 534. (v) Houghton v. Gilbart (1836), 7 C. & P. 701. (x) Constable v. Noble (1810), 2 Taunt. 403; Cockey v. Atkinson (1819), 2 B. & Ald. 460; Robertson v. Clarke (1824), 1 Bing. 445; Moxon v. Atkins (1812), 3 Camp. 200. (y) Parr v. Anderson (1805), 6 East, 202, 207. (z) Per Parke, B., in Hutchinson v. Bowker (1839), 5 M. & W. 542. (a) M'Dowall v. Fraser (1779), 1 Dougl. 260; Mackintosh v. Marshall (1843), 11 M. & W. 121; Duer, Representations, 78, 196. (b) Littledale v. Dixon (1805), 1 B. & P. N. R. 151; Rawlins v. Desborough (1840), 2 Mood. & Rob. 328 Westbury v. Aberdein (1837), 2 M. & W. 267. (c) Mackintosh v. Marshall (1843), 11 M. & W. 126. (d) Littledale v. Dixon (1805), 1 B, & P. N. R. 151. |