to the broker expressing a hope that the loss had been collected from the underwriters on the policy in question. This act, though performed so late, was held to be equivalent to a prior authority to insure (c).

IV.-ASSIGNMENT CLAUSE.

Policies of insurance may be assigned by the party in whose name the insurance was originally effected to another person entitled to the property thereby insured. Formerly, such assignees could only bring an action in the name of the person originally insured; but, by a recent Act (d), they are empowered to sue in their own names. The provisions of this

statute are as follows:

"Whenever a policy of insurance on any ship, or on any goods in any ship, or on any freight, has been assigned so as to pass the beneficial interest in such policy to any person entitled to the property thereby insured, the assignee of such policy shall be entitled to sue thereon in his own name; and the defendant in any action shall be entitled to make any defence which he would have been entitled to make if the said action had been brought in the name of the person by whom or for whose account the policy sued upon was effected."

It has been held that this is a statute which relates to procedure only, as it was passed because the Legislature desired to give the assignee a more convenient remedy, without the intention of making any alteration in the rights of the parties. Such was the judgment of the Court of Appeal in Pellas v. The Neptune Marine Insurance Co., where, in an action by the assignees of a policy of insurance to recover for a loss which had occurred, it was held that the underwriters were not entitled to set off a debt incurred with them by the assured for premiums on policies effected after the date of the assign

(c) Hagedorn v. Oliverson, see Ar- (d) 31 & 32 Vict. cap. 86. nould, 4th ed., p. 100.

ment, for such debt was not a "defence," within the meaning of the 31 & 32 Vict. c. 86, s. 1, nor was it the subject of a "setoff" or "counter-claim," which could otherwise be legally

made (e).

The above-mentioned statute supplies a form of assignment in the following terms:

"It shall be lawful to make any assignment of a policy of insurance by indorsement on the policy in the words, or to the effect set forth in the schedule hercto: I., A. B., of, etc., do hereby assign unto C. D., etc., his executors, administrators, and assigns, the within policy of assurance on the ship, freight, and the goods therein carried (or on ship, or freight, or goods, as the case may be)."

The adoption of this form is, however, not imperative, nor is it customary, as an assignment is usually made by indorsation in writing upon the body, margin, or back of the policy, or by delivery of the instrument with intention to assign it (ƒ).

The assignment of a policy of insurance after loss is within the Act (g); but if the interest of the assured have ceased before loss, an assignment of the policy after the loss has happened will be inoperative (h).

V.-LOST OR NOT LOST.

It appears probable that this clause was originally inserted only in policies on missing ships (i), but that, as its applicability to all contracts of insurance was recognized, it came into general use. The effect of the stipulation is, as stated by Marshall, that "the insurer takes upon himself, not only the risk of future loss, but also the loss, if any, that may have already happened" (k). The necessity for such a retro

(e) L. R. 4 C. P. D. 139; 5C. P. D. 34. (ƒ) Arnould, 4th ed., pp. 103, 104. (g) Lloyd v. Spence; Lloyd v. Fleming, L. R. 7 Q. B. 299.

(h) North of England Pure Oilcake

Co. v. Archangel Mar. Insurance Co.,
L. R. 10 Q. B. 249.

(i) See Molloy, De Jure Marit., Book 2, c. 7, § 5.

(k) Marshall on Insurance, 2nd ed.

spective application in policies is evident; for, owing to the time occupied in the transmission of advices from abroad, or other unavoidable causes, property is often exposed to marine risks, before the parties interested are cognizant of the fact, or have had an opportunity to protect themselves by insurance.

It is almost superfluous to observe that the terms of this clause would not enable the assured, if cognizant of a loss at the time when the insurance was effected, to recover from an underwriter who undertook the risk in ignorance of the fact; for, such a construction would be diametrically opposed to that obligation to observe good faith which, as we have already seen, lies at the foundation of the contract (1); nor, for the same reason, would they permit an underwriter to retain the premnium, if, at the time of insurance, he were privately informed of the ship's arrival (m). On the other hand, if both parties were ignorant of the fact of a loss having happened at the time when the insurance was effected, the policy would have full validity; and further, if both parties were cognizant of the loss, and still chose to effect an insurance, there is no reason to suppose that the contract would be annulled. In fact, the Courts have gone far towards affirming the contrary, by pronouncing an insurance good where the risk had been taken and the premium paid before loss, although, at the time when the policy was effected, both the assured and the underwriter were aware that two average losses had happened to the ship (n); and, in another case, by allowing a declaration of interest by a lost vessel upon a "floating policy" which was only executed after both parties had become aware of the loss (0).

Upon the same principle, if, at the time when the insurance

that they and the

is effected, the vessel have arrived in safety, the underwriters will be entitled to the premium, provided assured were alike ignorant of the fact (p). insurance has been effected by one party on

Where a policy of behalf of another,

without authority, it may be ratified after loss by the party on whose behalf it is made, though the latter be cognizant of the loss at the time of such ratification (9).

The full meaning of the clause is concisely stated in Kent's Commentaries, as follows:

"The form of the policy in England and the United States contains the words 'lost or not lost;' and if the subject insured be lost or have arrived in safety when the contract is made, it is still valid if made in ignorance of the event, and the insurer must pay the loss or not pay it as the case may be" (").

VI.—AT AND FROM.

These words precede the blank for the description of the voyage. There is a material difference between an insurance "from," and one "at and from" any place. The first only attaches to the vessel on sailing, but the second covers also the risk in port.

When a vessel is insured "at and from " a home port, where she is then lying, the risk commences immediately the insurance is effected, and continues during the whole time she remains there in preparation for the voyage insured (s).

When a vessel is insured "at and from " a port abroad to which she is bound, the policy attaches on the arrival of the vessel within the limits of the said port, provided she is then in a state which will admit of a fair inception of the risk in

sured (t). If the vessel arrive at the port where the risk is to have its inception in such a crippled condition that she is unable to lie there in safety until made fit for the homeward voyage, the policy will not attach (u); but, on the other hand, if the vessel, though damaged, be in a condition consistent with her security in port, the risk will commence from the first moment of her arrival within the port specified.

The time and circumstances in which the risk on a ship insured for the homeward voyage will attach were defined in the case of Haughton v. The Empire Marine Insurance Co. (x), which was an action upon a policy of insurance upon the hull of a vessel at and from Havana to Greenock. The vessel arrived off the harbour of Havana, and as soon as she got inside the headlands of the port, a pilot and steam-tug were engaged to take her to a spot where she could obtain a clear anchorage. She was then towed up the harbour to an anchorage, where she settled down upon the anchor of another ship, and sustained serious injury. On the following

(t) Marshall on Insurance, 2nd ed., pp. 155, 261.

(u) Parmeter v. Cousins, 2 Camp. 235. In the course of his judgment in this case, Lord Ellenborough observed that, in order that the risk under a policy "at and from" a place may attach, the ship must have once been at the place "in good safety." From this observation, it has been supposed by some that if the ship were to arrive within the limits of the port "at and from" which she was insured in a seaworthy condition, but in a state of danger owing to tempestuous weather, the policy would not attach until the vessel had gained a position of safety. There appears no sufficient warrant for such an inference from the case under review, for the vessel arrived at the port where the risk was to commence, not only in danger from a violent storm, but, in the words of Lord Ellenborough, so shattered as to be a mere wreck," so that she was unable "to lie in reasonable security" until "properly repaired and equipped." In Bell

v. Bell (2 Camp. 475), a political danger supervened on the arrival of the vessel at the port "at and from " which she was insured, yet the policy was not held to be precluded thereby from attaching, notwithstanding that the danger eventuated in the loss of the ship. Moreover, there is nothing in the terms of the policy, whether express or implied, which can be adduced in support of the view that a homeward policy will not attach until the arrival of the vessel at the port of departure in good safety, not only with respect to her own condition, but also as regards the operation of the perils against which she is insured. On the whole, it appears most comformable, both to reason and authority, to hold that a homeward policy on ship will attach whenever the ship first arrives within the limits of the port or place at which the risk is to commence, provided that her condition at that time is such as to comply with the warranty of seaworthi

ness.

(x) L. R. 1 Ex. 206.