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home. The court, however, determined that this vacated the policy. Denison v. Modigliani, 5 Term Rep. 580.
A policy of assurance is the property of the assured; and, if it be wrongfully withheld, either by his broker, or any other person, he may recover it by an action of trover.-Harding v. Carter and another, Sittings at Guildhall. Easter vacation, 1781.
Policies of assurance are generally printed, leaving blanks for the insertion of names and all other requisites. It is therefore frequently necessary to insert written clauses; and these written clauses and conditions, thus inserted, are to be considered as part of the real contract; the court will look to them to find out the intention of the parties, and will consequently suffer such condition to controul the printed words.
We will now proceed to consider, First, what persons may be the assurers. Secondly, what things may be assured. Thirdly, what the requisites of a policy are.
What Persons may be assurers.—By the statute of the 6th Geo. I. c. 18, the two offices, under the names of the Royal Exchange Assurance Office and the London Assurance Office, were established by charter; and were the only legal corporate offices for maritime assurance, within any of his Majesty's dominions. But the business of assurance was not confined to these two societies; for, private persons might be assurers, provided they did not assure in copartnership. And now by the 5th Geo. IV. c. 114, intituled, “An act to repeal so much of an act of the sixth year of King George the First, as restrains any other corporations than those in the act named, and any societies or partnerships, from effecting marine assurances, and lending on bottomry;' after reciting the abovementioned statute of 6 Geo. I. c. 18, and that pursuant to the said act, the Royal Exchange Assurance and the London Assurance had been established, and that it was expedient that so much of the said act, as restrains corporations or bodies politic, societies or partnerships, and persons acting in society or partnership, from insuring ships and goods and merchandises at sea, and from lending money by way of bottomry, should be repealed: it is enacted, that after the passing of this act, so much of the said act as restrains any corporation or body politic, society or partnership, or persons acting in any society or partnership, from granting, signing, and underwriting any policy or policies of assurance, or making any contract for assurance, of or upon any ship or ships, or goods or merchandise, at sea or going to sea, or from lending money by way of bottomry, or as makes any such contract void, or declares that the same shall be adjudged usurious, or as imposes any forfeiture or penalty in respect of any such policy of assurance or contract, shall be repealed. § i.
Provided, that nothing in this act contained shall extend to affect the rights and privileges of the Royal Exchange Assurance and London Assurance, otherwise than by making it lawful for other corporations and bodies politic, and persons acting in society or partnership, to grant and make such policies of assurance and contracts of bottomry as hereinbefore mentioned. $ 2.
The merchants, ship owners, and underwriters of London, have been for centuries in the habit of meeting at Lloyd's, for the purpose of transacting the business of insurance. The management of the affairs at Lloyd's, is conducted by a committee of nine members, appointed at a general meeting of the subscribers. The authority of the committee
is invested in them by a deed, executed by the subscribers who vote in the election of the committee. In pursuance of this deed, the committee nominate agents at nearly all the outports in the United Kingdom, and all foreign ports. But in an action against an underwriter, although the defendant be a subscriber to Lloyd's, yet a certificate granted by their agent abroad, is not admissible to prove the amount of damages.Drake v. Marryatt, 1 Barn. & Cress. 473.
Nert.-What things may be assured.—The most frequent subjects of marine assurance are ships, goods, merchandises, and the freight, or hire of ships. But, although assurances upon such property, mest frequently occur, yet there are cases which can hardly fall within ang of those descriptions.—1 Magens, 4.
The bottomry and respondentia are a particular species of property which may be the subject of assurance. But then it must be particularly expressed in the policy to be respondentia interest; for under a general assurance on goods, the party assured cannot recover money lent on bottomry. Such has been, and is at this day, the established usage of merchants.
This was decided in an action upon a policy of assurance upon goods and merchandises, loaden, or to be loaden, &c.” The evidence appeared to be, that, before the signing of the policy, the plaintiff had lent Capt. T. upon the goods then loaden and to be loaden on board the said ship, on account of the said Capt. T., the sum of £764 at respondentia, for which the bond was executed in the usual form: that the ship, at the time of the loss, had goods and merchandises on board, the property of Capt. T., of greater value than all he had borrowed: that the ship was afterwards burnt, and all the goods and merchandises were totally consumed and lost. Upon these facts, the question was, whether the plaintiff could recover ? This case was twice argued at the bar; the court took time to consider it, and were unanimous in their determination. Lord Mansfield, in delivering the judgment of the court, observed
, to this effect : “ I'am inclined to support this assurance, being.com vinced that it is fair, and that a doubt has arisen
by a slip in omitting to specify (as it was intended to have been done) that this was a respalla dentia interest. The ground of supporting this assurance, if it could have been supported, was a clause of the 19 Geo. II. c. 37, s. 5, which
, as to the purpose of assurance, considers the borrower as having a right to assure only for the surplus
value, over and above the money he has borrowed at respondentia. Yet we are all satisfied that this act of parliament never meant, or intended to make, any alteration in the policies, where the insurer had no interest at all; and, if the lender of whole interest, it would be a gaming policy ; for, it is obvious that, if he could assure all the goods, and assure his respondentia interest besides, this would amount to an assurance beyond
his whole interest In describing respondentia interest, the act gives the lender alone a right to make assurance on the money lent; so that the act left it on the practice. I have looked into the practice, and I find that bottomry and respondentia are a particular species of assurance in themselves, and have taken a particular
denomination ; I cannot find even a dictum in any writer, foreign or domestic, that the respondentia credin tors may assure upon the goods, as goods. I find, too, by talking with - intelligent persons, very conversant in the knowledge and practice of
assurances, that they always do mention respondentia interest, whenever they mean to assure it. The ground of our resolution is, “That it is now established as the law and practice of merchants, that respondentia and bottomry must be specified and mentioned in the policy of assurance."--Glorer v. Black, 3 Burr. 1394, and I Black. R. 405.
But, it has been ruled, that money expended by the captain for the use of the ship, and for which respondentia interest was charged, may be recovered under an assurance on goods, specie, and effects, provided the usage of the trade, which in matters of assurance is always of great weight, sanction it.
Thus, in an action upon a policy of assurance on goods, specie, and effects, of the plaintiff, who was also the captain on board the ship, the plaintiff claimed under that assurance, money expended by him in the course of the voyage for the use of the ship, and for which he charged “respondentia interest.” Lord Mansfield said, as to whether the words “goods, specie, and effects,” extended to this interest, I should think not, if we were only to consider the words made use of. But here there is an erpress usage, which must govern our decision. A great many captains in the East India service swear, that this kind of interest is always assured in this way, and here the person assured is the captain. Gregory v. Christie, K. B. Trinity Term, 24 Geo. III.
Captors of ships secured as prize may assure their interest therein before condemnation ; nor are they entitled to a returu of premium, if the capture be ultimately adjudged no prize; and restitution be awarded to the owners by the court of Admiralty.
Assurances upon the wages of seamen are forbidden;* a regulation founded in wisdom and sound policy; (i Magens, 18, 19.) and, iudeed, the general policy of the law of this country supports this regulation ; for, by 8 Geo. I. c. 24, § 7, “no master or owner of any merchant ship shall pay to any seaman, beyond the seas, any money or effects, on account of wages, exceeding one moiety of the wages due, at the time of such payment, till such ship shall return to Great Britain or Ireland.” By this salutary law, the sailors are interested in the return of the ship; and they will, on that account, be prevented from deserting it when abroad, from leaving it unmanned, and will be more anxious for its preservation. This regulation, however, does not mean to prevent mariners from assuring those wages which they are entitled to receive abroad, or goods which they have purchased with those wages in order to bring them home: but, in such a case, they are to be considered in the same light with other men.
It has, however, been determined, that where the mate of a ship or a sailor is to receive something at the end of the voyage, in lieu of wages, he cannot assure it, any more than he could assure wages payable in money.-Webster v. De Tastet, 7 T. R. 157.
The profits of a cargo employed to trade on the coast of Africa are assurable.-Barclay v. Cousins, T. R. Trinity, 42 Geo. III.
Goods may be assured, though purchased with the proceeds of a former illegal cargo.
It was long a question, how far assurances upon the ships or goods of enemies are poiitic; but no doubts were entertained concerning the
In Scotland, however, such assurances are by no means without example; and have never been the subject of litigation. Millar's Law of Assurances.
legality of such assurances in Great Britain, although the question long remained undecided.
It should be observed, that, in the year 1749, a bill was introduced into parliament to prohibit such assurances during the then existing war with France, and passed into a law. The operation of that act was Limited to the period of that war. The necessity for passing this act seemed to warrant the conclusion, that such assurances would have been legal, unless so prohibited : accordingly, too, a similar temporary act of parliament (33 Geo. III. c. 27, § 4.) was passed at the commencement of the last war: but the court of king's bench having decided, in two subsequent cases, against the legality of these assurances, independently of the acts of parliament, we must now consider these assurances upon the property of an open enemy as absolutely void.—6 T. R. 23 and 35. A British subject, however
, domiciled in a foreign country in amity with this, may lawfully exercise the privi
. leges of the country where he is so domiciled, and may effect an assurance on a ship from that country to another at war with this.Bell v. Reid, 1 M. & S. 726.
Of the REQUISITES OF A POLICY The essentials in a policy of assurance are, first, the name of the person for whom the assurance is made : Secondly, the names of the subscribers or underwriters, and the sums assured Thirdly, the names of the ship and master: Fourthly, whether they are ships, goods, or merchandises, upon which the assurance is made : Fifthly, the name of the place where the goods are laden, and whither they are bound : Sixthly, the time when the risk begins, and when it ends: Seventhly, all the various perils and risks which the assurer takes upon himself
; Eighthly, the consideration, or premium, paid for the risk or hazard run: Ninthly, the month, day, and year, on which the policy is executed: Tenthly, the stamps required by act of parliament..
Herein, of the names of the persons assured. The stat. of 2$ Geo. III. cap. 56, declares, “That it shall not be lawful, from and after the passing of that act
, for any person or persons to make or effect, or cause to be made or effected, any policy of assurance on any ship or vessel, or upon any goods, merchandises, effects, or other property whatsoever
, without first inserting or causing to be inserted in such policy, the name or names, or the usual style and firm of dealing, of one or more of the persons interested in such assurance ; or, without, instead thereof, first inserting the name or names of the usual style and firm of dealing of the consignor or consignors, consignee or consignees, of the goods and property so to be assured; or the name or names of the usual style and firm of dealing, of the person or per
, sons residing in Great Britain, who shall receive the order for and effect such policy, or of the person or persons who shall give the order or directions to the agent or agents immediately employed to negotiate or effect such policy. The statute farther declares, that every policy made or underwritten contrary to the true intent and meaning of this act shall be null and void to all intents and purposes."
Upon this act it has been decided, that it is not necessary, where a policy is effected by an agent, to add the word agent, or any other description to his name, in the policy itself; and it has also been decided, that a policy effected by a broker, describing himself thereon us agent, is a sufficient compliance with the act of parliament:
Devigniez v. Swanson, K. B. Mich. 39 Geo. III.-Bell v. Gilson,
Bos. and Puller's Rep. 345.
A plea of the plaintiff's being an alien is not valid, unless he be proved a native of a foreign country at enmity with this country, and that he have arrived here without letters of safe conduct from our king. - Casseres v. Bell, 8 T. R. 166.
If the assured be a liege subject of one country, and a citizen of another for the purposes of commerce, the circumstances of being born in the former cannot deprive him of the benefit of his uaturalization in the latter.—Wilson v. Marryatt, 8 Term Rep. 31.
The names of the subscribers or underwriters, and the sums assured.This indeed was always requisite; as, without it, there would be no assurer. The act of 35 Geo. III. c. 63, § 11, declares, that policies wanting this are null and void.
Of the names of the ship and master.—It seems to be necessary, by the law and usage of merchants, to insert the names of the ship and master, in order to ascertain the bottom upon which the adventure is to be made, and the captain by whose direction the ship is to be navigated. Sometimes, however, there are assurances generally,“ upon any ship or ships,” expected from a particular place: and although it is more accurate to insert the name of the captain, it is not certain that the assurance would be void, if a different captain from that mentioned in the policy came into the ship; especially as the policy always contains the words—" or whosoever else shall go for master in the said ship.”
With respect to assurances upon any ship or ships, it has been determined that they are not only legal and valid, but that the assured has a right to cover, by such policy, whatever ship he thought proper that fell within the terms of it.—Kewley v. Ryan, 2 H. Black. R. 3-13.
Whether they are ships, goods, or merchandise, upon which the assurance is made.- It is absolutely necessary that there should be a specification upon which of these the underwriter assures. But, in policies upon goods, it is not necessary to declare the particulars. If an insurer subscribe a policy “upon any kind of goods and merchandises,” there is no question but that he is bound by it, though no one article be specified. When goods are coming from abroad, it is better to assure under general expressions, on account of the various casualties which may happen to obstruct the purchase of the commodities intended to be sent.
There are certain kinds of merchandise which are of a perishable nature, on account of which, there is inserted a memorandum at the foot of the policy, by which it is declared, that, in assurances upon corn, fish, salt, fruit, flour, and seed, the underwriters will not be answerable for any partial loss, but only for general average, unless the ship be stranded. That, in assurances on sugar, tobacco, hemp, flax, hides, and skins, they consider themselves free from partial losses, not amounting to five per cent. ; and that, on all other goods, as well as on the ship and freight, if the partial loss be under £3 per cent., unless it arise from a general average, or the stranding of the ship, the underwriter considery himself discharged.
This memorandum was universally used till the year 1754, when a special jury, agreeable to the direction of Lord Chief Justice Ryder, decided that a ship having run aground was a stranded ship within the meaning of the memorandum; and that, although she got off again,