r 
 n«7 
 
 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW
 
 ELEMENTS 
 
 OF THE 
 
 W 
 
 < 
 
 REIATING TO 
 
 INSURANCES. 
 
 BY • 
 
 JOHN MILLAR,>«. Esq. Advocate. 
 
 EDINBURGH: 
 
 Printed for J. Bell, Parliament-close : And 
 G. G. J. & J. Robinson, London, 
 
 » 
 
 M.DCC.LXXXVII.
 
 T
 
 1-. 
 
 ^ TO 
 
 WILLIAM ADAM, Escb M. P. 
 
 COUNSELLOR AT LAW, 
 
 IN TESTIMONY OF 
 
 GRATITUDE AND ESTEEM, 
 
 THIS COMPILATION 
 
 IS RESPECTFULLY INSCRIBED, 
 
 BY HIS OBLIGED 
 
 HUMBLE SERVANT, 
 
 J. MlhLARfjunion 
 
 7^f^7'^'7
 
 PREFACE. 
 
 THERE Is no branch of law in which 
 a compilation, uniting theory with 
 pradlice, appears to be fo much wanted as 
 in that which relates to Infurance. 
 
 This, in a mercantile country, is a fub- 
 jed of great pradical importance. It is 
 no lefs a matter of fpeculative curiofity, as 
 it depends on the principles of general e- 
 quity and expediency, unconfined by the 
 Ihackles of municipal regulation. No 
 branch of law has, however, in proportion 
 to its importance, been fo imperfedly 
 treated. 
 
 In a work of this nature, the primary 
 objed, no doubt, is to illuflrate the prac- 
 tice by a colledlion of real cafes. Nothing 
 complete in this view could be expelled 
 from our early writers, becaufe it is prin- 
 cipally from the abilities of an eminent 
 Judge ilill living, and from the multiplici- 
 ty of infurance-queftions, arifmg from the 
 extenlive commerce of a recent period, 
 
 that
 
 VI 
 
 PREFACE. 
 
 that we have acquired any great number 
 of fyllematic decifions. Even in the more 
 full and recent compilation of Mr Wejkett, 
 a great many important decifions are 
 wanting. 
 
 In arrangement, and general reafoning, 
 the performances of this, and of all the 
 preceding writers, are flill more imperfed:. 
 Among the earlier compilers on infurance- 
 law, both Engiifh and foreign, there fcarce- 
 ly appears an attempt towards a natural 
 method ; and an alphabetical order feems 
 equally contrary to pradlical utility, and 
 fcientific principle. 
 
 This defeat is even lefs remarkable in 
 the arrangement of the general plan of our 
 writers, than in the detail of particular 
 parts. The fadts which they have colled:- 
 ed are not placed in fuch a light as to il- 
 luilrate any general principle. The de- 
 cifions of judges, and the regulations of 
 mercantile ftates, are loofely thrown to- 
 gether, and the bufinefs of clafling them is 
 left to the reader. 
 
 The
 
 PREFACE. Vii 
 
 The following publication is an attempt 
 to remove fome of thefe imperfedlions. 
 In the profecution of this work, the firfl 
 objedl is to make a complete colledion of 
 pradlical cafes in infurance. And here 
 undoubtedly the decifions of Lord Mans- 
 field ought to hold the chief place. It 
 would have exceeded the Author's plan to 
 have coUeded thefe at full length as they 
 Hand in the Reports of Sir William Bur- 
 row, Mr Couper, Mr Douglas, or in later 
 compilations of the fame kind. It is at- 
 tempted, therefore, to abridge them, as far 
 as appears confillent with perfpicuity. 
 
 A CONSIDERABLE number of Englifh 
 cafes, likewife, which had not, when this 
 work went to the prefs, appeared in any 
 printed collecSlion, are here inferted. Thefe 
 have been furnifhed by a gentleman con- 
 verfant in the law of England, on whofe 
 accuracy the Author can depend. 
 
 The older Englifh decifions mufl like- 
 wife enter into the prefent coUedion. In 
 the original compilations, thefe are fome- 
 times given with fo much concifenefs, as 
 
 to
 
 Vlll 
 
 PREFACE. 
 
 to permit of their being inferted at full 
 length, and fometimes their obfcurity will 
 fcarcely admit of an abridgment. In ge- 
 neral, however, it has been ftudied to pro- 
 portion the length of each decilion to its 
 importance in point of illuflration. An 
 abridgment of this kind, although it "will, 
 not altogether fuperfede the neceflity of 
 confulting the original authorities, may, it 
 is hoped, be of confiderable utility. 
 
 The deciiions of the Supreme Court in 
 Scotland, upon matters of infurance, have 
 never been fully colleded or digefted in 
 any work of this kind. As thefe, how- 
 ever, are of importance to one part of the 
 nation in point of precedent, and to the 
 whole as a matter of curiofity, it has been 
 thought proper that they fhould appear as 
 completely as poflible in the prefent pub- 
 lication. Many of them relate to points 
 never exprefsly decided in England, and 
 all of them afford further illuflration of 
 general principles. With the fame view 
 of illuflration, a feledlion has been made 
 of fuch foreign cafes as contain any thing 
 important or fingular. 
 
 Besides
 
 PREFACE. ix 
 
 Besides collecting thefe deciiions, it has 
 been the view of the Author to arrange 
 and digefl them as they naturally arife 
 from one another, and as they contribute / 
 to illuftrate the general reafoning and 
 principles -upon which they are founded. 
 For this purpofe the following order has 
 occurred : 
 
 CONTENTS. 
 
 Introduclory Obfervations on the ControM of Infu- 
 ranee. — Its Nature. — Utility of it. — Hi/lory. — 
 Subjecls of Infurafice, I 
 
 PART I. Of the Circumstances requisite 
 
 TO PRODUCE A VALID INSURANCE, 29 
 
 Chap. i. Form of the CojitraEl , 30 
 
 Chap. 2. Effecl of Fraud and Error in a 
 
 Policy of Infurance^ 3g 
 
 Sect. i. Direct Frauds 48 
 
 2. Erroneous information, or mif- 
 
 take occafioned by the fault 
 
 of the other party, 52 
 
 — 3. Mutual Error, 97 
 
 Chap. 3. How far Parties have a right to 
 recede from their Engage- 
 ments, no 
 h PART
 
 X CONTENTS. 
 
 PART II. Of the Nature of an Insurance 
 
 Contract, and the Obligations arising 
 
 FROM it, -^^5 
 
 Ghap. I. Of the Duration of the Infurer's 
 
 Sect. i. Commencement of Rijk, 117 
 2. Termination of Rijk, 119 
 
 Chap. 2. Of the Nature of the Ri/k ; or of 
 the Event agai?ift which provi- 
 fion is ?nade by Infurance 1 29 
 
 Chap. 3. Of the Extent of the Infurers 
 Obligation when a Lofs is incur- 
 red in terms of the Policy y 206 
 
 Sect. i. How the Extent of Obligation 
 is affedled by the AJfured'^s 
 interell in the Subject, 207 
 
 2. In what manner the Obligation 
 
 of the Underwriter is affedled 
 by the Nature and Extent of 
 the Lofs, 279 
 
 Art. I. Total Lofs. — Abandonment, ib 
 Art. 2. Partial Lofs. — Dig rejton con- 
 cerning Average, 329 — 331 
 
 PART
 
 CONTENTS. xi 
 
 PART III. Of those Circumstances pecu- 
 liar TO Insurance, which extinguish 
 THE Obligations of Parties, and vacate 
 THE Policy, 375 
 
 Sect. i. Effecl of the AJfured exceeding his 
 Powers; or of Variation /row 
 the Policy, 383 
 
 2. Effeci of Failure of exprefs War- 
 
 ranties , or of Nonperform- 
 ance, 468 
 
 3. Of Premium^ — and of the Return 
 
 of Premium when the Policy is 
 vacated, 528 
 
 ELE-
 
 ELEMENTS 
 
 O F 
 
 INSURANCE. 
 
 Introdu6lory Obfervations on the ContraEl of In- 
 furance. — Its Nature. — Utility of it. — Hijlory. 
 — SubjeSls of Infurance. 
 
 i.TNSURANCE is a contracl, by which one 
 Jl man, for a conli deration received, becomes 
 liable for the lofs arifing to another, from any 
 fpecified contingency. 
 
 The one party, who is called the Infurer or 
 Underwriter, receives, or is fuppofed to receive, a 
 fum of money, in hand, at the time of the agree- 
 ment. This is called the Premium. The other 
 party, the AJfured, whofe property is expofed to 
 fome danger, obtains an obligation of indemni- 
 fication, in cafe the damage apprehended lliall 
 take place. 
 
 The contrad of infurance differs from moft 
 other contrails, in this refped. That the con- 
 fideration is given, not for a certain determinate 
 
 A payment
 
 2 Introduction. 
 
 payment or performance, but for what is merely 
 contingent. The affured pays a fum of money 
 in advance : But the reciprocal obligation of 
 the underwriter depends upon an event, which is 
 uncertain at the date of the contrad. What he 
 takes upon himfelf, is a mere rijk; and it re- 
 mains to be afcertained by future accidents, what 
 is the payment or performance to which he fhall 
 be fubjcclcd, or whether he fhall be fubjeded to 
 any. 
 
 2. The utility of a contrad of this nature, in 
 commercial nations, is great and apparent. The 
 underwriter, who promifes to be refponfible for 
 the danger attending the condudt of any branch 
 of trade, receives a conlideration proportioned to 
 the rilk he undertakes, and therefore derives a 
 reafonable profit from that employment of flock. 
 On the other hand, the merchant, by abandon- 
 ing a fhare of his expeded gain, is freed from 
 the apprehenfion of a lofs that might be ruinous 
 to him. The underwriter is thus enabled to 
 participate in the profits of every different con- 
 cern : He becomes a fort of temporary partner 
 of the moft extenfive trading companies. 
 
 Infurance is no lefs advantageous to the public 
 than to individuals, by moderating and diffu- 
 fmg the profits of trade, and by preventing acci- 
 dental misfortunes from operating to the ruin 
 of individuals, or companies of merchants, which 
 might obflrud the uniform progrefs of com- 
 merce, and endanger public credit. 
 
 3-
 
 History of Insurance. 3 
 
 3. Confidering the manifeft utility of fuch a 
 contrad, and that it feems to be fo obvioufly 
 fuggefted, from the circumftanccs of perfons en- 
 gaged in any hazardous mercantile adventure, 
 it may be thought wonderful, that the pradtice 
 of infurance was in a great meafure unknown to 
 the nations of antiquity. This muft, undoubtedly, 
 be attributed to the limited nature of their com- 
 merce. 
 
 The Greek ftates feem to have been totally 
 unacquainted with it. We hear of the mercan- 
 tile regulations of Rhodes ; part of which has 
 been tranfcribed into the compilations of Justi- 
 nian; but no paiTage has been handed down 
 to us, that alludes to fuch a bargain as infu- 
 rance. 
 
 The Romans, although they were pofTefled of 
 great wealth, had, comparatively, little experi- 
 ence in commerce. Their opulence was chiefly 
 the effed of rapine and peculation in the con- 
 quered provinces. Among that people, trade 
 and manufadlures were carried on principally by 
 the flaves and freed men of the more wealthy 
 citizens, and were conlidered as below the dig- 
 nity of thofe who were born free. As a proof 
 of the limited ftate of their trade, it has been 
 obferved, that mercantile profits, in confequence 
 of the little competition among merchants, were 
 immoderately high ; by which the rate of inter- 
 eft became proportionably great. From the fitu- 
 
 ation
 
 4 ' Introduction. 
 
 ation of the Romans, there was little occafion 
 therefore to diminifh the hazard of the merchant, 
 by infurances. It is impoffible to fuppofe, that a 
 bargain of this kind was totally unknown among 
 them, but it appears to have been very uncommon. 
 
 In Justinian's Pande6ts, the lawyer Ulpian, 
 ferioully makes the obfervation, That a contrad 
 of infurance is not illegal. " Ilia ftipulatio, 
 " decern millia falva fore promittis P valet*." Had 
 the bargain been common, fuch an opinion with 
 regard to its validity, would have been thought 
 • fuperfluous. 
 
 A contrivance fomething fimilar to infurance . 
 is mentioned by Suetonius f, as having been 
 employed on a fmgular occalion by the Emperor 
 Claudius. In order to encourage the importa- 
 tion of grain, he took the rifk of the fea upon 
 himfelf : '* Negotiatoribus certa lucra propofuit, 
 " fufcepto in fe damno, fi quid per tempeftates 
 " accidilTet j et naves, mercaturae caufa, fabri- 
 *' cantibus, magna commoda conltituit." In a- 
 nother cafe, it is mentioned by Livy, " impetra- 
 " turn fuit, ut,>quae'navibus imponerentur ad ex- 
 *' ercitum Hifpanienfem deferenda, ab hoftiuni 
 " tempeftatifque vi, publico periculo elTentJ." 
 
 In thefe cafes, however, no mention is made 
 of a premium paid, by the merchant, for the 
 
 hazard 
 
 * Dig. 1- 67. de verb, obligatiouibus. 
 
 f Suet, in Vita Claudii, c. 18. 
 
 X Livy, lib. 23. c. 49. i
 
 History of Insurance. 5 
 
 hazard undertaken ; and they are rather to be 
 confidered as examples of a bounty offered by 
 the public, than of a mutual contract. 
 
 From the infrequency of infurance at Rome, 
 this agreement had no name ; it could only be 
 exprefled by a circumlocution ; and writers, du- 
 ring the early period of modern ages, adopted the 
 barbarous word AJfecuratio. 
 
 The contradl of bottomry, however, which is 
 fomeu'hat a-kin to infurance, or at leafl anfwers 
 the fame purpofe in a more limited degree, is fre- 
 quently mentioned by the Roman lawyers, and 
 is the fubject of a particular title in the compila- 
 tions of Justinian *. 
 
 Upon the downfal of the Roman empire, fome 
 part of the ancient commerce was carried on by 
 feveral towns of Italy, which by their lituation 
 on the coall of the Mediterranean, were enabled 
 to trade v/ith many neighbouring nations, and 
 by the Red Sea, to maintain a correfpondence 
 with India. The Moors who fettled in the fouth 
 of Spain, and the other inhabitants of that coun- 
 try, particularly about the Bay of Bifcay, enjoy- 
 ing advantages of fituation in fome refpeds ii- 
 milar, were alfo. encouraged to carry on an ex- 
 tenfive navigation, and became early a mercan- 
 tile people. 
 
 The inhabitants around the Baltic werein like 
 manner enabled, at an early period, to procure a 
 fubfiftence by filbing \ to convey the rude mate- 
 rials 
 
 * Dig. De Nautico faenore.
 
 6 Introduction. 
 
 rials of the country along the coafts of that nar-. 
 row fea ; and thence to trade with nations at a 
 dillance. 
 
 The fouthern commerce of Italy and Spain, 
 and the northern trade of the Baltic, were fol- 
 lowed by the manufadures and trade of the Ne- 
 therlands : the ruin of which, from the bad 
 policy of Philip II. laid the foundation of the 
 commercial profperity of Holland and England. 
 
 This progrefs of commercial improvement was 
 accompanied with a correfponding extenlion of 
 mercantile law. A variety of rules were laid 
 down by different ftates ; at firft, for the regula- 
 tion of navigation merely, and, at a period fome- 
 what later, for the regulation of infurances, and 
 other maritime contracts. 
 
 The firft public enadments of this kind feem 
 to have taken place in the Levant. What thefc 
 were, is not now precifely known ; but we are 
 told, that the commercial laws eftablilhed by fome 
 of the petty ftates in the Mediterranean, had ob- 
 tained a high reputation and currency among 
 merchants. It is unnecefTary to fpecify the precife 
 dates of thofe ordinances. The regulations of 
 Rome, and of Am.alphi, then a famous mercan- 
 tile ftate, were made about the end of the nth 
 century. Thofe of Majorca, at that time pof- 
 felTed by the Pifans, and of Pifa itfelf ; thofe of 
 Marfeilles ; of Almeria, a town belonging to 
 the Counts of Barcelona ; of Genoa ; and of the 
 Morea, were introduced in the courfe of the i ith ; 
 
 and
 
 ' History of Insurance. 7 
 
 and thofe of Venice, of Conftantinople, and of 
 Arragon, in the courfe of the 13th century*. 
 
 The enad:ment of limilar regulations at the 
 ifle of Oleron, in the Bay of Bifcay, when that 
 illand and the adjacent territory of France were 
 in the polieffion of Richard I. of England, was 
 probably iuggelled from imitation of the flatutes 
 of the Levant. It is at the fame time deferving 
 of notice, that the illand of Oleron^ from its cen- 
 trical fituation between the maritime Itates of 
 Italy and the Baltic ; between Spain, the coun- 
 try which produced fine wool, and the infant 
 manufadtures of Flanders, joined to its con- 
 nection with the dominions of England, and its 
 pofition at the mouth of the Garonne, rendered 
 it a very convenient entrepot for the exchange 
 of commodities between thefe different countries. 
 The regulations of Oleron, are faid to have been 
 firft collefted and publifhed about the year 1266. 
 
 There is reafon to believe, that infurances 
 were not pradifed at the time when the earlier 
 regulations of the Levant, and thofe of Oleron, 
 were arranged into a fyllem. The former have 
 not been handed down to us ; but the latter, 
 which were probably a mere copy of them, con- 
 tain no allufion to fucli a contra(5l. 
 
 At a period fomewhat later, flouriflied the mag- 
 nificent city of Wijhy^ the capital of Gothland, 
 
 and 
 
 * Sec GiAN. Hlft. Naples. Ca/a-regz on the Confolato 
 
 del Mare. Tliis laft famous compilation, which was received 
 by the whole ftates of the Levant, was originally the pre- 
 clusion of the Kings of Arragon.
 
 8 Introduction. 
 
 and the great mart of the Baltic ; whofe maritime 
 ordinances were held in high eftimation, and are, 
 in general, ftill in obfervance among the northern 
 Hates. In thefe regulations, there is one paffage 
 referring to a policy of infurance *. 
 
 Several French writers have afcribed to their 
 own country, the honour of inventing infurances, 
 together with bills of exchange. They maintain 
 that both of thefe owed their origin to the ex- 
 pullion of the Jews from France, who, in 1182, 
 made ufe of thofe expedients for concealing and 
 fecuring the tranfportation of their effedls f . 
 
 This account, however, both with regard to 
 infurances and bills of exchange, feems to be 
 extremely improbable. It is difficult to conceive, 
 that mercantile contrads, of fuch an obvious 
 nature, were the exclufive invention of any fet 
 of people, or that they could long remain un- 
 known in any nation poffeffing a confiderable 
 degree of trade. The 12th century, the period 
 in which this invention is fuppofed to have a- 
 rifen, was that of the firll great advancement of 
 
 the 
 
 * " Si le maiftre eft contraint de bailler caution au bour- 
 '' geols pour le navire, le bourgeois fera pareillement tenu 
 *' bailler caution pour la vie du maiftre j c'eft a dire, que 
 " contre les hazards de la mer et de la mort, il ne peut eche- 
 '' oir de requifition raiionnable a bailler caution ; reguliere- 
 " ment le bourgeois doit rifquer fon bien, et le maiftre fa li- 
 " berte et fa vie 5 bien y peut eftre fait poUjfe d\]ffurance.'^ 
 Ord. de Wift)y, as colledted by Chirac^ Us et coutumes de 
 la mer. Art. 6(), 
 
 \ See BoRNiER, — Savary.
 
 Elements of Insurance. 9 
 
 the arts, and of knowledge, in Europe. And as 
 the Italians had then made greater proficiency 
 in trade, and in every fpecies of improvement, 
 they were likely to make the firll and gi'eatefl 
 advances in relation to infurance and to exchange, 
 as well as in every other branch of commercial 
 tranfadion. 
 
 The name, accordingly, which has been a- 
 dopted by the whole of Europe, for this contract, 
 is evidently derived from the Italian word po~ 
 li-zza, a promife. And the firft regulations, of 
 any confequence, that relate exprefsly to the 
 fubjecl of infurance, are thofe enaded by the 
 Hates upon the coaft of the Mediterranean. Men- 
 tion is made, by Cleirac, of the infurance laws 
 of Barcelona, enaded in the year 1484 *. The 
 regulations of Florence, upon the fame fubje^t, 
 promulgated about the year 1523, refer to cer- 
 tain more ancient laws or cuitoms prevalent in 
 that city. The practice of infurance, both in 
 England and the Netherlands, was indifputably 
 introduced by the merchants of Lombardy. 
 
 From Barcelona, the rules and practice of in- 
 
 B furance 
 
 * Thefe Ordonnances des Frudhommes de Barce/onne, had 
 been ufually inferted in the editions of the Confolato del Mare 
 ef Arragon ; but they are rejcded by Casa-Regis, as of a 
 later date than that fanious compilation. Thofe paflages quoted 
 by Cleirac, prove the praflice of infurance to have been of 
 fome ilanding at Barcelona. See Us et Coutnmes de la Mer, 
 p. 224 and 235. Alfo fee the preface to the Confolato dd 
 Mare, of Casa-Regis.
 
 io Introduction. 
 
 furance were communicated to the different pro- 
 vinces of Spain : By means of a commercial in- 
 tercourfe with Italy, joined to a territorial con- 
 nediorr with the Spaniih dominions, they were 
 extended to the Netherlands ; and, under Phi- 
 lip II. gave rife to a confiderable compilation at 
 Antwerp. 
 
 The invention of the mariners compafs, which 
 was foon foUovv^ed by the difcovery of America, 
 and of a palTage to the Eafl Indies by the Cape 
 of Good Hope, opened a field of commercial ad- 
 venture much more exteniive and fertile. Thefe 
 difcoveries were, at the fame time, produclive of 
 greater variety in the nature and degree of ha- 
 zard attending mercantile undertakings. They 
 tended, therefore, of neceffity, to difplay the ad- 
 vantages, and to increafe the pradice of infu- 
 rance; and by introducing a multiplicity of pro- 
 vifions and ftipulations formerly unknown, to 
 render the contradt more complex, and appli- 
 cable to a greater variety of cafes. By degrees 
 thefe difcoveries altered entirely the commercial 
 flate of Europe ; a knowledge of navigation was 
 more univerfally diffufed, and the cuftom of in- 
 furances became more or lefs exteniive among 
 different nations, according as they obtained, by 
 iituation, or other circumftances, a greater fliare 
 in thofe diftant branches of trade. 
 
 From this period, a great variety of maritime 
 regulations were enabled in moil of the ftates of 
 Europe , and thefe have been renewed and al- 
 tered
 
 Elements of In-surance. 11 
 
 tered from time to time, according to the fug- 
 geftions of more advanced experience. The or- 
 dinances of the different great cities in Holland, of 
 Amilerdam, Rotterdam, and Middleburg, which 
 have received correction lince the commence- 
 ment of the prefent century, are particularly 
 worthy of notice. To thefe may be added, the 
 ftatutes of Hamburgh, of Stockholm, and Copen- 
 hagen; ofBilboa; and above all, the very complete 
 code of mercantile regulations adopted in France 
 by Lewis XIV. Thefe, with others that might 
 be mentioned, form a fyftem of what the fenti- 
 ments of profefTional men in different countries 
 have determined to be juft, and of what their ex- 
 perience has found to be ufeful. 
 
 In all thefe colledlions of maritime law, the 
 regulation of infurances appears an objed of prin- 
 cipal concern. In feveral foreign ftates, its im- 
 portance has rendered it the fubject of jurifdic- 
 tion to a feparate court of juftice. This is the 
 cafe in France, in Amflerdam, and Middleburg, 
 in Stockholm, and in Copenhagen. 
 
 Britain is, however, the country in which the 
 pradice of infurance has been moil extenlive, 
 and in which the law of infurance has been mofl 
 improved. This contrad is faid to have been 
 introduced into England by a fet of Italian mer- 
 chants, who refided in Lombard-flreet, and who 
 are ftill alluded to in the printed forms of Bri- 
 tifh policies, by a claufe, providing, that " the 
 *' contrad Ihall be as effedual as thofc formerly 
 
 ** made in Lombard-ftrcet." 
 
 In-
 
 12 Introduction. 
 
 In the time of Queen Elizabeth, infurance 
 had become fo frequent, particularly at the of- 
 fice of the great mercantile qompany in the Royal 
 Exchange in London, as to draw the attention 
 of the Legiflature. And a court of juftice, cal- 
 led the Chamber of AJfurances, was eftablillied, 
 to take cognizance of all quellions with regard 
 to it. 
 
 By the ftatute, 43d Eliz. c. 12. a fpecial com- 
 miffion, to confift of the Judge of the Admiralty, 
 the Recorder of London, certain dodors of civil 
 law, and a number of difcreet merchants, was 
 appointed to be named by the Chancellor, for 
 the purpofe of deciding upon infurances. This 
 Court, however, had no excluiive jurifdid:ion, 
 but one merely concurrent with the courts of 
 common law. An appeal lay from it to Chan-, 
 eery. From the limited nature of its powers, 
 this commiffion appears never to have been of 
 confiderable utility ; and it has long been laid 
 afide. 
 
 It is pretty remarkable, that although the prac- 
 tice of infurance has been carried to a much 
 greater extent in Britain than in any other coun- 
 try in Europe, yet we have few Itatutory regula- 
 tions on that fubject. 
 
 This circumftance may perhaps be, in part, ac- 
 counted for, from the late period, comparatively 
 fpeaking, at which the commerce and the infu- 
 rance of Britain became extenfive. The rife of 
 Britain, as a great mercantile nation, was pofle- 
 
 rior
 
 Elements of Insurance. 13 
 
 rior even to that of the Netherlands, and of the 
 Dutch commonwealth. All the European na- 
 tions who made advances in commerce, had en- 
 acled feparate fy items of mercantile regulation, 
 which however agreed in moft points. The 
 great doftrines with regard to infurance, came 
 therefore tO be previoufly fettled by the ufage 
 and confent of merchants ; and Britain, of con- 
 fequcnce, had lefs occafion for politive ftatutes 
 upon the fubjed. 
 
 Belides, in a great and extenfive empire, like 
 Britain, the attention of the Legiflature is lefs 
 apt, than in fmall Hates, to be direfted to the 
 improvement of private jurifprudence. 
 
 In one remarkable inftance, indeed, the prac- 
 tice of infurance has, perhaps injudiciouily, been 
 limited by public regulation. The facility of 
 combination among merchants, their activity in 
 promoting their own interefc, together with the 
 credit and influence which they naturally pof- 
 fefs with the Legiflature, have produced an at- 
 tempt to ere(5t a monopoly in this, as well as in 
 other branches of commerce and manufacture. 
 
 In the year 172,0, two great companies, known 
 by the names of the Royal Exchange AJfurance 
 Company^ and the London AJfurance Company, 
 made application to Parliament, to obtain the 
 excluiive privilege of carrying on, as a company, 
 all the infurances of the kingdom. And in con- 
 lideration of L. 600,000, advanced towards pay- 
 ment of the debt contradcd upon the civil lilt, 
 
 their
 
 
 14 Introduction. 
 
 their requeft was granted. By Jin a^t, there- 
 fore, 6th Geo. I. c. 18. it was provided, " That 
 ** it fhall be lawful for his Majefty, by two char- 
 " ters, to erect thefe two Companies into fepa- 
 " rate incorporate bodies, for the affurance of 
 Ihips and merchandife at fea, or for lending 
 money on bottomry. That all other companies 
 fliall be prohibited from engaging in thefe 
 " branches of trade, except the Eall India and 
 " South Sea Companies, which may ftill lend 
 *' upon the bottoms of their own Ihips." Pri- 
 vate adventurers, however, are allowed to under- 
 write as formerly. 
 
 When this adl was made, it is probable that 
 the ftock of an affociation of merchants was ne- 
 cefTary for producing fufficient credit to carry on 
 an exteniive trade of infurance ; and that the 
 exclulive privilege given to the two companies 
 above mentioned, in contradiftinclion to all o- 
 ther companies, was therefore fuppofed to be of 
 fome confequence. But fince that time, the 
 great accumulation of wealth in the hands of in- 
 dividuals, has produced a proportionable con- 
 fidence in their perfonal fecurity, and enabled 
 them to cope even with the mercantile compa- 
 nies in this branch of buiinefs. The ftatute, at the 
 fame time, is in fome meafure, evaded, by making 
 the infurance in the name of an individual, who, 
 by a private agreement, becomes bound to com- 
 municate with others his profit and lofs. 
 
 The fcheme of monopolizing the bufinefs of 
 
 infurance,
 
 Elements of Insurance. 15 
 
 infurance, has net been confined to Britain ; a 
 regulation fimilar to the Britifli ftatute above 
 mentioned, -was introduced in Paris, in the 
 year 1686, when the exclulive right of under- 
 writing, as a company^ was veiled in a fociety, 
 conlifting only of thirty perfons. Limitations 
 of this kind, it is believed, Hill continue, al- 
 though with a lefs degree of ftridtnefs ; and to 
 this fpirit of reftraint, one of their own writers 
 afcribes the little progrefs which the French 
 have made in infurances. 
 
 The authors who have written exprefsly up- 
 on infurance in Britain, are not numerous. 
 There have been feveral books on maritime af- 
 fairs in general, which contain a few occalional 
 obfervations, and fome practical cafes relating to 
 infurance ; but which are comparatively of fmall 
 importance. The chief of ,thefe are, Molloy 
 de Jure Mar itimo et Navali ; Gerard Malynes' 
 Lex Mercatoria ; Postlethwaite's Diclionary of 
 Commerce-, Beawes' Lex Mercatoria rediviva. 
 
 The firft author of note who writes exprefsly 
 upon infurance is Nicholas Magens, mer- 
 chant. His book, in two volumes, which was 
 publifhed in 1755, confifts of a fliort elTay on 
 infurance ; a coUeclion of cafes relating to ad- 
 juftments and averages ; a compilation of fo- 
 reign mercantile ordinances ; and a number of 
 treaties with foreign powers. It is, undoubted- 
 ly a work of great utility and merit. His com- 
 pilation of the moft important fyftems of foreign 
 
 ordinances,
 
 i6 Introduction. 
 
 ordinances, mufl: continue to be much in requeft. 
 His ejfay, which is principally founded upon thefe, 
 is concife, acute, and pracT:ical ; and had he li- 
 ved at a period fubfequent to the decifions of 
 Lord Mansfield, might perhaps have fuperfe- 
 ded many future treatifes on the fubjed. The 
 other pivts of his book are lefs judicious. His 
 colledion of cafes of adjujlment and average, is 
 excellively voluminous and prolix ; and each 
 cafe is ilated with a minutenefs of calculation, 
 that few people have application enough to fol- 
 low. It is to be regretted, that while he infert- 
 ed thefe, and a variety of treaties of peace, that 
 are extremely foreign to the fubjeft, he fliould 
 have totally overlooked that great fource of e- 
 quitable regulation, the decifions of courts of 
 juftice, in England, and in other countries. 
 
 The fmall volume on " Bills of Exchange 
 " and infurances," afcribed to Mr Cunning- 
 ham, is principally a compilation of adjudged 
 cafes, taken from Strange's Reports, and from 
 MoLLOY, Malynes, and the older writers, with 
 very little general obfervation, and ftill lefs me- 
 thod. The work by Mr Parker on the ** Laws 
 " of Shipping and Infurance," is a limilar col- 
 ledlion of the ads of Parliament, relating to 
 thefe fubjeds, and of cafes extending to a period 
 fomewhat more recent ; but without any at- 
 tempt at arrangement. 
 
 The late publication by Mr Wesket, in the 
 form of a didionary, contains by far the great- 
 eft
 
 HiSTOjiY OF Insurance. l^ 
 
 eft colleclion of materials on the fiibjecl of in- 
 furances hitherto publiflied in this country. It 
 is unneceffarj to give any account of a book fo 
 generally known ; and the numerous documents 
 it contains will fufficiently juftity the ufe made 
 of it by the author of the prefent Treatife, efpe- 
 cially in matters of pradlice. 
 
 But the great improvement of Englifh law, 
 with regard to infurance, has proceeded from 
 the number of decifions which our courts of ju- 
 ftice have recently pronounced upon that fub- 
 jed:. The trade of Britain, has, of late, been 
 fo extenlive and various, as to increafe to a very 
 great degree the demand for infurance, and to 
 bring under difcuffion a multiplicity of curious 
 and interelling points. There is perhaps no 
 fubjed of private jurifprudence, upon which the 
 liberal views of the prefent age, and the refined no- 
 tions of equity, as well as the great knowledge and 
 abilities of the Englifh judges, have been of late 
 more eminently difplayed. It would be pre- 
 fumption in the author to fpeak more particu- 
 larly of the diilinguiihed charadler to whom the 
 kingdom is principally indebted for thefe deci- 
 fions. 
 
 In Scotland, the improvements of this branch 
 of law have been ftill later than in England, as 
 might be expedled from the flower progrefs of 
 its commerce. Although the decifions of the 
 principal court of juilice have been pretty regu- 
 larly colleded, for more than a century, yet, the 
 
 C firft
 
 i8 Introduction. 
 
 iirfl decifions which, ftridly peaking, relate to 
 infurance, are all, except one, within the courfe 
 of the laft ten years. During this period, how- 
 ever, the trade of infuring has rifen to a very 
 great height ; and the decifions of the Court of 
 Seflion, upon that fubjedl, have become propor- 
 tionably comprehenfive and fyllematic. 
 
 4. The fubjeds of infurance may be as various 
 as the different fpecies of property, and the dif- 
 ferent forts of danger to which thefe may be ex- 
 pofcd. This variety has, in fome cafes, been li- 
 mited by common iaw^ as well as by exprefs re- 
 gulation. 
 
 It is unneceffary to enter into a minute detail 
 of the different cafes in which infurance is pro- 
 hibited. The great example of reftriclion in 
 this refpecl, thofe prohibitions which are calcu- 
 lated for the prevention of gaming, will fall to 
 be more particularly confidered hereafter. 
 
 All infurance on illicit trade is prohibited, as 
 well as the commerce it tends to encourage. 
 This feems to follow fi'om the principles of com- 
 mon law, without pofitive enadment. Every 
 perfon who infures contraband goods, is affifting 
 and abetting in an evafion of the law. Nay, as 
 the infurer takes the rifk of capture and feizure 
 upon himfelf, it is he, properly fpeaking, who is 
 to be confidered as the fmuggler. Every infu- 
 rance upon a trade w^hich the parties know to be 
 illicit, mult therefore be illegal ; it is a contract ob 
 
 turpeni
 
 Subjects of iNSURA^fCE. 19 
 
 turpem caufam ; and the perfon who claims upon 
 fuch a policy, mud found upon his own crime. 
 
 The principles of common law% however, upon 
 this fubjed, have very univerfally been enforced 
 and confirmed by exprefs regulation. This is the 
 cafe among all the foreign mercantile ftates, with- 
 out exception. 
 
 In England, the Legiflature has, befides de- 
 claring the law, added the fanclion of a fevere 
 penalty on all infurance on contraband trade. 
 By flat. 4. and 5. W. and M. c. 15. it is provided, 
 that " all perfons who fhall undertake, by way of 
 " injliraiice, or otherwife, to deliver any goods, 
 " <&€. without paying the duties or cuftoms, or 
 " a7iy prohibited goods whatever,'''' fnall forfeit . 
 the fum of L. 500 ; and that the like fum fiiall 
 be forfeited by the alTured, 
 
 This general flatute, with regard to illegal 
 infurance, has been repeated and applied to 
 particular inflances of prohibited trade *. It is 
 only deferving of notice, that, by the Union, 
 this, like every other ftatute regulating the fo- 
 reign commerce of England, is underflood to be 
 extended to Scotland. 
 
 The general prohibition of infurance on illi- 
 cit trade, is illuftrated by the following cafe : 
 
 Johnston againjl Sutton. 
 
 Sutton infured Johnjlon *' on goods on board 
 " the fliip Venus, at and from London to New 
 
 ** Tork:' 
 * See the flat. 8. and 9. W. and M. — 12. Ceo. II. c. 21.
 
 20 Introduction. 
 
 " Tork,'''' The fliip had been cleared for H«/z- 
 fax and New Tork ; flie had provifions on board, 
 which Ihe had a licence to carry to New Tork, 
 under a provifo of the prohibitory a-dl i6, 
 Geo. III. c. 5.; but one half of the cargo, in- 
 cluding the goods which were the fubjeds of this 
 policy, was not licenfed, and was not calculated 
 for the Halifax market, but for New Tork. There 
 had been a proclamation by Sir William Howe, 
 allowing the entry of unlicenfed goods at New 
 Tork ; but this proclamation the Commander 
 had no authority, under the ad: of Parliament, to 
 iffue. The F^enus was taken in her pafTage to 
 New York, by an American privateer. 
 
 A verdid having been found for the plaintiffs, 
 a rule for a new trial was granted ; the court 
 were clear, that this being an infurance on an 
 illicit trade, was therefore null; and judgment 
 was given for the defendant, by the riile being 
 made abfolute, Boiigl. Rep, Nov. 15. 1779. 
 
 It has been the fubjed of doubt, how far this 
 rule of common law, annulling infurances on il- 
 licit trade, is applicable to the cafe, where a 
 branch of traffic is permitted in one country, 
 but prohibited in another ; how far ought an 
 infurance, contrary to the law of either of thofe 
 nations, between whofe fubjeds a trade is car- 
 ried on, to be fupported by a foreign court of 
 juftice. 
 
 On the one hand, it has been laid down, by a 
 
 very
 
 Subjects of Insurance. m 
 
 very eminent Scots law authority*, that no 
 bargain, contrary to the law of the locus contract 
 tus, and confequently to the duty of the contrac- 
 ting parties, can be effedual in any country. 
 
 " Obedience," fays he, *' is due to the laws of 
 
 " our country, and to tranfgrefs any of them 
 
 <* is a moral wrong. This moral wrong ought 
 
 " to weigh with judges in every country ; be- 
 
 ** caufe it is an ad of injuftice to fupport any 
 
 ** moral wrong, by making it the foundation 
 
 " either of an action, or of an exception. I give 
 
 " for an example, the ftatute prohibiting any 
 
 " member of a court of law to buy land about 
 
 " which there is a plea depending. Such a pur- 
 
 " chafe being made notwithilanding, the pur- 
 
 *' chafer follows the vender into a foreign coun- 
 
 *' try, in order to compel him, by a procefs, to 
 
 " make the bargain effectual . A bargain un- 
 
 " lawful, where made, becomes not lawful by 
 
 " change of place ; and therefore the foreign 
 
 " judge ought not to fupport fuch unlawful bar- 
 
 " gain, by fuftaining adtion upon it." 
 
 The general line of decifion in the fupreme 
 court of Scotland feems agreeable to Lord Ka.mes's 
 pofition, that the judges of one country are, fo 
 far, ex comitate, bound to pay attention to the 
 laws, though merely municipal, of another. 
 There does not occur any diflindion between 
 revenue ordinances, and any other fpecies of mu- 
 nicipal regulation. 
 
 Thi? 
 * Princip. of Equity, b. 3. c. 8. § ']".
 
 22 Introduction. 
 
 This dodrine is undoubtedly the liberal one ; 
 but it is attended with fome difficulties. The 
 interpretation of a foreign municipal law, it may 
 be argued, whether confuetudinary or llatutory, 
 mult, in many cafes, be a matter of great difficul- 
 ty ; and in which our courts of juilice are by 
 no means competent to judge. To fupport a fo- 
 reign regulation, is a very different matter from 
 enforcing a foreign decree ; becaufe, in the latter 
 cafe, the court is relieved from all queilion with 
 regard to the application of the law. But there 
 may be more danger from their mifunderfland- 
 ing a foreign municipal ordinance, than from 
 their negleding it altogether. In the one cafe, 
 by difregarding the regulation, the judge only 
 fails to fupport a right ; in the other, by miftak- 
 ing and mifapplying the law, he enforces a pofi- 
 tive wrong. Thefe reafonings, however, do not 
 appear conclufive. 
 
 From the opinion above ftated, it follows, 
 that wherever an infurance is illegal at firft, being 
 inconfiftent with the duty of the contra6ting 
 parties, fuch an agreement ought not to be fu- 
 ftained in any country whatever. Suppofe, there- 
 fore, that two Englifh fubjedls reliding at Paris 
 lliould execute an infurance in each others fa- 
 vour, upon wool to be exported from England. 
 Such a bargain, being criminal in Britifh fub- 
 je6ts, ought not to found adion in France. Or 
 fuppofe that two Engliflimen, reliding at Paris, 
 infure each other on goods to be fmuggled into 
 
 France ;
 
 Subjects of Insurance. 23 
 
 France ; fuch a policy ought not to be fuilained 
 at London ; for it was illegal at firlt, being con- 
 trary to the lex loci contra£lus, and therefore in- 
 confiftent with that temporary obedience which 
 every man owes to the laws of that country in 
 which he reiides. 
 
 But a third cafe may be put, in which a difFe-- 
 rent conclufion mufl be drawn. Suppofe that 
 two perfons, refiding in their own country, 
 agree to infure upon goods to be fmuggled in- 
 to any foreign ftate ; the bargain would pro- 
 bably be reprobated by the ftate which was to 
 fuller the detriment ; but it ought to be fupported 
 every where elfe ; for it is an innocent bargain. 
 The rules of natural equity, it may be obferved, 
 are obligatory every whej:e 3 but thofe regulations 
 which are merely municipal, like the revenue or- 
 dinances of a country, have no obligation be- 
 yond the jurifdidion of the enabling power. The 
 revenue laws of any nation, are, in the view of 
 foreigners, mere meafures of expediency, adopt- 
 ed to fupply the neceffities of government. They 
 are matters of fad:, which foreigners are not 
 fuppofed to know; and reftridtions upon natural 
 right, in which, although known, they are not 
 bound to acquiefce. This is eftablilhed by the 
 following dechfion : 
 
 In the month of July 1778, Planche and 
 Jacquery^ merchants in London^ procured in- 
 furance, from Fletcher^ " upon goods on 
 
 *' board
 
 ti 
 
 ti 
 
 ^2,4. Intr-oduction. 
 
 ^ board the Maria Magdakna, a Swedifli flijp, 
 at and from London and Ramfgate to Naiitz, 
 ' with liberty to call at OJlend, being a gene- 
 ral fhip in the port of London for Nantz." 
 It was underftood, that Ihe was to go dired:- 
 ly to Nantz, without touching at OJlend ; but 
 the fliip's clearances from the cuftomhoufe in 
 London were all made out as for OJlend only. 
 At the fame time, the captain, while at London, 
 with a view of evading certain French duties, 
 figned bills of loading, in the French language, 
 bearing to be made at OJlend^ and reprefenting 
 the goods as fhipped at OJlend for Nantz. The 
 proclamation for reprisals on French fhips hav- 
 ing appeared previous to the fhip's failing, Ihe 
 was taken by a King*s cutter, and the goods 
 were condemned. 
 
 Lord Mansfield faid, " the reafon for clear- 
 " ing for Oftend, and figning bills of lading as 
 '' from thence, did not fully appear. But it was 
 *' guelTed at. The Fermiers Generaux have the 
 " management of the taxes in France. As we 
 ** have laid a large duty on French goods, the 
 " French may have done the fame on ours, and 
 it may be the interell of the farmers to connive 
 at the importation of Englifh commodities, and 
 " to take Oftend duties, rather than ftop the trade 
 " altogether, by exacting a tax which amounts 
 *' to a prohibition. But, at any rate, this was no 
 *' fraud in this country. One nation does not 
 
 " take 
 
 n 
 It
 
 Subjects of Insurance. 25 
 
 <* take notice of the revenue laws of another ^.''^ 
 Dough Rep. Nov. 15. 1779. 
 
 Another prohibition has been very generally a- 
 dopted among the maritime flates of Europe; that 
 of infarance, by feamen, upon their own wages. 
 This has been introduced, from the view of fe- 
 curing the diligence and activity of that clafs of 
 men in the prefervation of Ihip and cargo. A?, 
 this prohibition, however, has no foundation 
 whatever in common law, it can only be conli- 
 dered as taking place in thofe countries where it 
 has been enforced by politive enactment. Views 
 of expediency, however great, are not of them- 
 felves fufficient to eftablifh what is law. In 
 Britain, accordingly, where the Legiflature have 
 made no provifion upon the fubjed, an infurance, 
 by feamen, upon their own wages, mufl un- 
 doubtedly be held as valid. It does not appear 
 that the point has been exprefsly decided ; but, in 
 Scotland at leaft, fuch infurances are by no means 
 
 D without 
 
 * It is material to obferve, that, In this cafe, there was a 
 declaration in the policy, that the infurance was made on 
 account of Vallee & Duplejfis^ Munjieur Lufeau le jcune^ 
 Guillaume Albert, et Poitier de la Gueule. From thefe names, 
 and from the condemnation, it was aflumed by the defen- 
 dants counfel, that the iutereft was French. But Lord 
 Mansfield faid, " It does not appear tt\at the goods are 
 " French property. An EngliHiman might be fending his 
 " goods to France in a neutral fhip."
 
 26 Introduction. 
 
 without example, and have never been the fub- 
 jed: of challenge *. 
 
 Many of the foreign mercantile ftates prohi- 
 bit infurance on lives : A prohibition ariling 
 from the jealoufj naturally entertained in an ill 
 regulated government, of whatever may ferve as 
 a motive to the commiffion of great crimes. The 
 fame jealoufy is yet more apparent in fome of the 
 Italian ftates, where infurance is not only prohi- 
 bited on the lives of great men, but on any po- 
 litical occurrence, and even on marriages and 
 the birth of children. 
 
 In this country, infurances may relate chiefly 
 to three different fubjeds. ijl, A man may in- 
 fure his houfe and effects from the accidents of 
 lire, idly^ A perfon who has a revenue or pe- 
 cuniary advantage depending on his own life, or 
 on the life of any other perfon, may infure the 
 contmuance of that revenue for a time fpecified. 
 And, lajlly, A man may infure his property from 
 the riik attending its tranfportation from place 
 to place, either by fea or land. 
 
 Of all thefe, by far the moft important, and 
 that which opens the moft extenfive and curious 
 field of enquiry, is the infurance upon property 
 expofed to the hazards of the fea. In fpcaking 
 
 of 
 
 * The cafe of Kay againjl Toung (quoted under Conceal, 
 merit, jj. i. ch. 2,), was an infurance by the captain on his 
 own wajes. Although it was keenly litigated, this point ws^ 
 not ilarted.
 
 Method. 27 
 
 of infurance, therefore, it will be underflood, 
 that, in general, this laft, or what may be called 
 maritime infiiriwce, is meant. At the fame time, 
 notice fhall be taken of any peculiarities that oc- 
 cur with regard to the infurance on lives, and 
 fromjire, 
 
 Infurance on a maritime adventure may be 
 either on the Jbip, the cargo, or on the freight, 
 that is, on the wages which the fhip ought to 
 earn by the carriage of goods from port to port. 
 
 We are told alfo, that mercantile adventurers, 
 particularly in the Mediterranean, were formerly 
 accuftomed to infure their perfonal liberty. The 
 effed: of this agreement was to fubjed: the in- 
 furer in the ranfom, if the affured was made a 
 captive. It is imagined an agreement of this 
 kind is now very uncommon ; but where it takes 
 place, it is not materially different from an in- 
 furance againft the lofs of a Ihip or cargo ; and 
 therefore does not feem to deferve a feparate con- 
 fideration. 
 
 5. In treating of this fubjedl, I fhall confider, 
 Jirjl, How the contrad is entered into, or the cir- 
 cumflances requifitc to produce a valid infu- 
 rance. Secondly, What are the obligations ari- 
 ling from it. And, lajlly. What are the circum- 
 flances by which the obligations of parties may 
 be extinguifhed, particularly thofe peculiar to 
 tJiis agreement. 
 
 ELE-
 
 ELEMENTS 
 
 O F 
 
 INSURANCE. 
 
 PART I. 
 
 Of the circumjlances requijite to produce a valid 
 Infurance, 
 
 TH E great circiimftance efTential to the con- 
 ftitution of infurance, as well as of every 
 other contract, is the confent of parties. 
 
 Upon this fubje<5t, we may conlider, firjl, the 
 form of words y or writing, in which this confent 
 mull be exprefled. 
 
 idly^ The confent of parties, in order to produce 
 a valid obligation, mull be free from, force^ from 
 fraud, and, in certain cafes, from error or mifiakc. 
 It will open an extenlive and curious field of 
 enquiry, to examine the operation of the general 
 principles of law, with refped to feveral of thefe 
 particulars, when applied to a contrad of fo pe- 
 culiar a nature as that of infurance, 
 
 Laj
 
 30 A VALID Insurance how constituted. 
 
 Laflly, We may examine whether confent 
 alone, although free from the intervention of 
 fraud and error, and expreffed in a formal deed, 
 will be fufficient to produce a complete contract 
 of infurance ; or, how far, after fuch legal con- 
 fent, parties have a right to recede from their a- 
 greement, 
 
 CHAP. I. 
 
 Of the form of a?i Infurance-contradi, 
 
 THE importance of the contrad of infurance, 
 and the lingularitj of thofe obligations 
 which it is intended to create, have, in all com- 
 mercial ftate^, rendered a deed in writing ef- 
 fential to its validity. In moft countries where 
 infurance is pradifed, printed forms of policies 
 are ufed, varying according to the objedl of the 
 agreement, with blanks for the circumftances in 
 which one adventure may differ from another. 
 In the expreffion of thefe, tliere is confiderable 
 variety in different countries. The following is 
 offered, as a neat and concife example of a mari- 
 time policy * : 
 
 ** Lion,— Su AW, frofn New York to Clyde, at two 
 guineas per cent. 
 
 *' IN the Name of GOD, Amen. Know all 
 men, by thefe prefents, that we fubfcribers, mer- 
 chants in Glafgow, have affured, likeas, we, 
 
 each 
 
 * For the London form, fee the appendix j as well as for 
 the form of a policy on lives, and from fire.
 
 Form of the Contract. 31 
 
 each of us for ourfelves, do, by thefe prefents, 
 afTure to, and in favour of, Meffrs A, B. and Co, 
 merchants in Glafgow, for themfehes, or for 
 whom it may concern^ the feveral lums of money 
 annexed to our refpedive fubfcriptions under- 
 written, upon the hull, boats, materials, and other 
 furniture, of and in the Lion ; likewife, upon the 
 freight of faid Lion, and upon all a?id whatfo- 
 ever kinds of goods and vierchandife, laden or 
 to be laden, on faid account, aboard of faid Lion, 
 burden tons, or thereabout, whereof 
 
 John Shaw — is mafter, for this prefent voyage, 
 or whofoever elfe fhall go mafter in the faid fliip, 
 or by whatever other name the faid fliip or ma- 
 fter is, or fhall be called ; beginning the adven- 
 ture upon the faid hull and aforefaids, at and 
 from New Tork, and upon the faid freight, and 
 goods and merchandife, at and from the lading 
 thereof aboard the faid Lion, and to continue and 
 endure, until Jljejhall arrive at Greenock or Fort- 
 Glafgow, a7id be fafely moored twenty-four hours, 
 and faid freight, and faid goods and merchandife 
 he there fafely landed. The faid hull and a- 
 forefaids, are and JJjcill be valued at one thoufand 
 pounds Sterling, and faid freight at five hundred 
 pounds Sterling, and faid goods afid rnerchandife, as 
 value may hereafter appear by invoices-, according 
 to which particular fum, ail loftesthat may happen 
 upon the faid hidland aforefaids, are to be repaired 
 by us, proportionably to the feveral fums annexed 
 
 to
 
 32 A VALID Insurance how constituted. 
 
 to our fubfcriptions, in manner underwritten. 
 Touching the adventures and perils, which we, 
 the faid alTurers, are contented to bear, and do 
 take upon us in this voyage ; they are of the 
 fea, men of war, fire, enemies, pirates, rovers, 
 thieves, jettezons, letters of mart, and counter- 
 mart, furprifals, takings at fea, arrefts, reflraints, 
 and detainments, of all Kings, Princes, or peo- 
 ple, of what nation, condition, or quality foever, 
 baratry of the mailer and mariners, and all 
 other perils, lofles, or misfortunes, that have, or 
 Ihall come, to the hurt, detriment, or damage 
 of the faid bull and aforefaids, or any part there- 
 of, during this adventure. And in cafe of any 
 misfortune or lofs, it Ihall be lawful for the af- 
 fured, their factors, fervants, or affigns, to fue, 
 labour, and travel for, in and about the defence, 
 fafeguard, and recovery of the faid hull and 
 aforefaidSy or any part thereof, without preju- 
 dice to this aflurance, to the charges whereof 
 we the affurers will contribute each of us for 
 ourfelves, according to the refpedive fums af- 
 fured by us in manner underwritten. And it is 
 agreed by us, the affurers, that this writing 
 and afflirance fhall be of as much force and ef- 
 fedl, as the furefh policy, or writing of afflirance 
 made at London. And fo we the affurers, do 
 hereby bind and oblige us, each of us for our- 
 felves, conform to the fums of money annexed 
 to our refpeclive fubfcriptions underwritten, our 
 heirs and fucceffors, to the faids Mejfrs A. B. 
 
 and
 
 Form of the Contract. 33 
 
 find Co. their heirs, executors, and affigns, for 
 the true performance of the premifcs, and to 
 repair any lofs they fliall fuftain upon the faid 
 hull and afore/aids^ or any part thereof, to 
 the extent of the fums at which the flime are 
 particularly valued, in manner above written, 
 during the .continuance of this adventure ; con- 
 felling ourfelves paid the conlideration due to us 
 for this alTurance, by the allured, after the rate 
 of two guineas per centum. And it is fur- 
 ther agreed, that in cafe of average lofs, not ex- 
 ceeding Jive pounds per hundred, upon the 
 faid whole iliip, tackle, apparel, boat, and o- 
 ther furniture, and upon the whole goods and 
 merchandifes, laden or to be laden aboard 
 the faid fliip, we are not to pay, or allow 
 any thing towards repairing fuch lofs." 
 
 ' * And it is further agreed, that in cafe any difpute 
 or difference Ihall arife, relating to a lofs on this po- 
 licy, it fliall be referred to two indifferent perfons, 
 one to be chofen by the faid alfured, and the o-r 
 ther by us, who Ihall have full power to adjufl 
 the fame ; and in cafe they cannot agree, then 
 fuch two perfons fliall chufe a third perfon to be 
 overfman and umpire betwixt them ; and any 
 two of them agreeing, their fentence and award 
 fliall be obligatory to both parties : With and 
 under the burden of which three laft named 
 provifions thefe prefents are granted, and no o- 
 ther ways. In witnefs whereof we have fub- 
 
 E fcribcd
 
 34 
 
 A VALID Insurance how constituted. 
 
 fcribed thefe prefents *, (printed on llamped pa- 
 per, conform to act of Parliament,) at Glafgow, 
 the firji day of January^ One thoufand feven 
 hundred and eighty /f^v years, before thefe wit- 
 nelfes, C, D. merchant in Glajgow^ and D, F. 
 merchant there, by whom the blanks, witnef-^ 
 fes names and delignations are filled up." 
 
 " N. B. Infurers are not liable for any average- 
 lofs upon grain, fifh, fruit, wine, proviiions, or 
 other goods which in their own nature are liable 
 to perifh or decq,y, by continuing long on board, 
 or being faulty or decayed before fliipping : 
 But the owners of fuch goods fnali recover, on a 
 general average, when any part of them are 
 thrown overboard, for the prefervation of the 
 whole ; and on a particular average, when the 
 damage happens by ftranding or bulging." 
 
 All contra(5ts of infurance agree in certain ge- 
 neral claufes, which may be confidered as eflen- 
 tiai. Every policy mull fettle the following par- 
 ticulars : 
 
 iji. The perfon in whofe favour the infurance 
 is made. 
 
 idly. The fubjecl infured, whether houfe, life, 
 Ihip, goods, or freight. 
 
 3fi?/r, The fort of danger from which the fub- 
 jedl is warranted. 
 
 ^thly, 
 
 * This claufe is peculiar to policies ufed at Glafgow. It 
 has the eftect of making the policy a complete deed, accord- 
 ing to the Scots form of writings.
 
 Form of the Contract. ^ 35 
 
 4i/j/y, The confideration or premium given by 
 the afTured. And, 
 
 ^thlvy The fubfcription of the underwriters, 
 with the place and date of each fubfcription. 
 
 To thefe five articles, it iliould feem, all the 
 claufes that in Britain ufually enter into an in- 
 furance-policy may be reduced. 
 
 With regard to the perfon in whofe favour the 
 infurance is made, this head of the policy com- 
 prehends all thofe claufes which may be prompt- 
 ed by an anxiety to prevent miftakes in this mat- 
 ter ; fuch as, that the infurance fliall be valid 
 '* in. favour of whoever fliall be proprietor of the 
 *' fubjecfl ;" or with regard to the point, how 
 far the policy may admit of ajfigmnent. 
 
 Thtfecond head comprehends all thofe circum- 
 ftances of defignation and defcription that may 
 appear necefiary to identify the fubjed ; and 
 thofe claufes which ferve to afcertain what pro- 
 portion of the fubjecl is fecured from hazard. 
 This, in infurances on lives and from fire, is ge- 
 nerally executed by a particular flipulation, ex- 
 preiling to what extent the infurer fliall be re- 
 fponfible. In maritime infurances, which are 
 frequently underwritten by a number of indivi- 
 duals, it is done by a fum of m.oney being ad- 
 jected to each lubfcription. Claufes 'valuing the 
 fubjecl ini'ured, have a limilar effect, and are ex- 
 tremely common. 
 
 The
 
 36 A VALID Insurance how constituted. 
 
 The third article of the policy, the dmiger to 
 which the infurer is fubjedled, feems to depend 
 upon two particulars ; the extent of the lofs 
 which may be incurred, and the nature and cir- 
 cumftances of the adventure from which that lofs 
 may arife. To afcertain this laft, which is o-f 
 the utmofl confequence, it is neceffary, in mari- 
 time infurances, to fpecify when the rifk fhall 
 commence and terminate ; the port of loading, 
 and that of the difcharge of the veifel, together 
 with the different places at which, during the 
 voyage, flie may touch. 
 
 Under this head may likewife occur a variety 
 of exceptions and conditions, which are expla- 
 nations of the adventure undertaken, and far- 
 ther limitations of the danger to which the in- 
 furer fubjeds himfelf. The underwriter on fire, 
 for example, fometimes excepts from his obliga- 
 tion the danger of fire horn, foreign invajion. The 
 infuf. *' on lives fometimes thinks it of fufhcient 
 imv ortance to infert the exception of death by 
 fuic de, or the band of jiijlice, 
 
 X^-^ith refped to the two laft articles, the re- 
 ceipt of the premium muft be acknowledged by 
 the underwriter, for reafons to be afterwards ex- 
 plained. And the policy is fubfcribed by him 
 alone, becaufe it is the underwriter alone who 
 comes under an obligation to a future perfor- 
 mance. 
 
 In foreign, and in many Britifli policies, there 
 is a ciaufe by which parties bind themfeives to 
 
 fubmit
 
 Form of the Contract. 37 
 
 fubmit any queftions that may arife, to the deci- 
 fion of arbiters. But this in Britain is not under- 
 ftood to exckide an application to the judicial 
 eftablifliments of the country. Foreign policies 
 likewife contain a claufe fixing the forum in 
 which the contracl fhall be made efTedual. But 
 this is never praclifed in Britain. 
 
 It does not appear, that, naturally, any form of 
 words whatever is effential to an infurance contrad;, 
 provided it contains the claufes above mention- 
 ed. All the foreign commercial flates, however, 
 who have attempted any regulation on this head, 
 have prefcribed a particular ftyle to be employ- 
 ed. Among fome of them *, this form is necef- 
 fary to the validity of the contradl. In others f , 
 the deviation from it is attended with a penalty, 
 but without annulling the deed. 
 
 In England, where few ftatutory regulations 
 have taken place upon infurance, every man, it 
 fhould feem, may adopt that form of expreffion 
 which pleafes his own fancy. Writing feems, 
 however, to be indireclly rendered neceflary, by 
 a ftatute now to be mentioned. 
 
 In this country, the frequency and importance 
 of the contract of infurance has pointed it out 
 to government, as a proper fource of public reve- 
 nue. Accordingly, by flat. ii. Geo. I. c, 30. 
 § 44. it was provided, that, " when any veffel 
 " or merchandifes fliall be infured, a policy, du- 
 " ly llamped, fhull be ilTued or made out, within 
 
 *< three 
 
 * Antwerp, Florence. f Spain.
 
 38 A VALID Insurance how constituted. 
 
 " three days at farthefl, under the penalty of 
 " L. 100 upon the infurer, to be recovered like 
 " all other penalties, in relation to the ftamp- 
 " duties." And promiflbry notes, unftamped, 
 for alTurances of Ihips or merchandifes, are de- 
 clared null. 
 
 With regard to the amount of this ftamp -du- 
 ty, it was provided by 8th Geo. III. c. 25. that 
 property extending to L. 1000, might be infured 
 with a 5 s. {lamp, and all above it with two 5 s. 
 ftamps; but that without thefe, the infurance 
 fhall be void, and the premium {hall remain the 
 property of the infurer *. By {lat. i6th Geo. III. 
 c. 24. an additional duty has been laid on, of 
 one {hilling on every policy f . 
 
 The eflfedt of thefe {tatutes, therefore, feems 
 in one view to be this : A bargain of infurance 
 may be entered into, by any writing, or even 
 
 verbally ; 
 
 * The onus prohandi lies upon the infurer, that a policy pro- 
 perly flamped, had been made out. Betts, qui tarn <b-c. a- 
 gainft Carman. Betts brought an adion on flat. ii. Geo. I. 
 c. 30. § 44. againft Carman, to recover the penalties from the 
 defendant, for underwriting without a flamped policy. 
 
 AsHURST I. held, That the plaintiff did enough to fupport 
 his cafe, if he proved the contract ; which he did, by a let- 
 ter from the defendant, acknowledging the receipt of the 
 premium : That it was incumbent on the defendant to fliew 
 the adual execution of the policy, within the terms of the 
 a61: ; and that a (lamped policy, made three days after, was 
 no defence. The Court confirmed this judgment, by i-e- 
 fufing the defendant a new trial. Mich. 24th Geo. III. 
 B. R -M. S. 
 
 f Similar duties are exigible on fire and life policies.
 
 Effect of Fraud and Error. 39 
 
 verbally ; bat after three days, it cannot afford 
 a ground of adlion, unlefs extended on paper 
 ftamped in terms of the acl. The alTured, like- 
 wife, fhall have no a(5tion to recover his premi- 
 um, and the infurer fliall forfeit L. 100, as penal- 
 ties, for attempting to defraud the revenue. 
 
 The requilites above mentioned being attend- 
 ed to, and the policy exprelTed in intelligible 
 language, the contradt of infurance is complete, 
 as to form. 
 
 CHAP. II. 
 
 Of the effect of Fraud and Error, in a Policy of 
 Infurance. 
 
 IT is abundantly evident, that dired fraud a- 
 mong contracling parties, mud be deflruclive 
 of the validity of any engagement. The perfon 
 who praclifes fraud in his dealings, is criminal. 
 The fympathy and indignation of the public 
 are interefted, to redrefs the fufferer; to prevent 
 the other party from acquiring an advantage by 
 his own delinquency, and even to fubjed him to 
 punifhment. 
 
 This principle is particularly applicable to the 
 bargain of infurance. In this agreement, the 
 fituation of parties fuppofes a mutual confidence 
 and good faith, in a peculiar degree ; and the 
 notion o^ fraud meets with a more extenlive 
 conftrudlion from the law, than in other con- 
 tracts. 
 
 In
 
 40 A VALID Insurance how constituted. 
 
 In many otlicr tranfaaions ; in the fale of any 
 commoclity, lor example, it is enough if the 
 vcmler does not adually impofe upon the pur- 
 chafer, by rcprcfenting his merchandife as differ- 
 ent from w hat it is in reahty ; it infers no fraud 
 that lie does not difclofe all its defeds. The 
 merchant fubmits his goods to the infpedtion of 
 tlic purchafer, ^vho is fuppofed, in a certain de- 
 gree, to truft to his own Ikill; and if, confiding 
 in appearances, he lliould rejeft a better com- 
 modity, and chufe a worfe, or if he fliould be 
 miftakcn in the market-price of it, the merchant 
 \\ill not be deprived of the advantage ariling 
 from his own duplicity and concealment in this 
 refpeft. 
 
 Ihit infurance is an agreem.cnt, not with re- 
 gard to a fubjccl already exifting, but a future 
 contingency. There is nothing prefented to the 
 fenfcs for ocular infi)e6lion ; the quellion is with 
 regard to the amount of a probability ; and all 
 thofe circumftances on which that probability 
 depends muft be difclofed, before the fubjed of 
 the intended bargain can be fairly judged of. 
 
 The full communication of every particular 
 relating to the rilk, is peculiarly incumbent 
 upon the afiured. The affured is often the own- 
 er of the fliip : He is, in all cafes, more con- 
 ncrted with the owners than the underwriter is: 
 He has far better opportunities, therefore, of be- 
 ing acquainted with the nature of the adven- 
 ture, the ftrcngth of the fhip, the condition of 
 
 the
 
 Effect of Fraud and Error* 41 
 
 the cargo, the perils of the voyage ; and, with 
 regard to any peculiarity in thefe refpefts, the 
 underwriter mufl depend on the information 
 of his alTured. It becomes abfolutely necef- 
 lary to guard, with the utmolt circumfpeclion, 
 againlt fraudulent condudl on the part of the af- 
 fured, for which he has fo much temptation and 
 opportunity. 
 
 Not only, therefore, is the fmalleit degree of 
 deceit, and dired; mifreprefcntation fufficient to 
 dellroy the policy ; but every intentional conceal- 
 ment of circumftances, which may any way af- 
 fect the confent of parties, is a breach of that 
 peculiar trufl and confidence repofed by the one 
 party in the other ; and it vacates the agreement 
 as a fpecies of fraud. All intentional concealment^ 
 of circumftances which vary the rifk, is frauds 
 in infurance. 
 
 The efTedl of eri^or and inijiake, in deftroying 
 the confent of parties to an infurance policy, is 
 no lefs worthy of obfervation. 
 
 A policy of infurance refembles other con- 
 trads, in requiring that parties fliould be fully 
 agreed about the nature and qualities of the fub* 
 jecl of their bargain. If, whether from fraud 
 or from error-y the fubjed is confidered by one 
 of the parties, as materially different from what 
 it is in reality, the agreement is, in fadl, incom- 
 plete, and the perfon who fufFers is entitled to 
 redrefs. 
 
 F Put:
 
 42 A VALID Insurance, how constituted. 
 
 Put the cafe, that one perfon fells a horfe, 
 which has fome important latent defed, fuch as, 
 if known, would put a ftop to the bargain ; the 
 purchafe muft be invalid ; for the horfe is, in faft, 
 materially different from that which the other 
 party intended to buy ; and confent, the eflen- 
 tial circumflance of a contrad, is here really 
 
 wanting. 
 
 The fame thing holds in a policy of infurance. 
 The affured, for a premium given, purchafes in- 
 demnity upon a fpeciiied event ; and the infurer, 
 for the confideration received, fubjedshimfelf to 
 a rilk. If that event appears to the infurer in a 
 light materially different from what it is in reali- 
 ty, the rifk undertaken becomes different from 
 what was underftood ; the contracl entered in- 
 to is, in fact, different- from that which was in- 
 tended, and mull be null, as wanting the con- 
 fent of parties. 
 
 In ordinary contrads, in a fale, for example, 
 a diffindion may be made betwixt various kinds 
 and degrees of error. The molt llriking in- 
 llance of error occurs, where one individual fub- 
 jedl is miftaken for another ; as when a perfon 
 is commiflioned to purchafe a particular horfe, 
 and by millake purchafes another inftead of him. 
 Nearly connecled is that degree of error which 
 relates to the ejfential qualities of a fubjed ; fup- 
 pofe, for inftance, a horfe is bought for the 
 plough, and it appears, upon trial, he has never 
 been broke to that fervice. 
 
 The
 
 Effect of fraud and error. 43 
 
 The purchafer of any commodity, no doubt, 
 when it is fairly fubmitted to his infpeclion, is 
 underftood to depend, in a certain degree, upon 
 his own Ikill in eftimating its value. But there 
 are certain qualities which every vender mull be 
 fuppofed to warrant to the purchafer ; the mer- 
 chant is underftood to warrant the commodity 
 as not materially deficient in refpedl of its prin- 
 cipal ufes. And if it fhould turn out to be, in a 
 high degree, incapable of being applied to thofe 
 purpofes for which fuch a commodity is intended, 
 although there ihould be no fraud in the vend- 
 er, the lofing purchafer muft be freed from his 
 bargain. 
 
 The queftion however recurs ; What are thofe 
 qualities which the vender is fuppofed to war- 
 rant ? The defed: of any commodity is a matter 
 of degree ; and how far may a latent defect ex- 
 tend without annulling the contract ? It may be 
 anfwered, the merchant is fuppofed to warrant 
 thofe qualities which have been effential to the 
 agreement, and without which there would 
 have been no agreement. It is, therefore, fuch 
 error only as gives rife to the bargain, that can 
 render it invalid ; fuch as, ifcorreded in proper 
 time, would have totally prevented the contrad 
 from taking place. 
 
 With regard to miftakes of inferior import- 
 ance, as to the nature and qualities of the fub- 
 ject, fuch as, if corrected in time, could not have 
 
 prevented the bargain altogether, but only alter- 
 ed
 
 44 A VALID Insurance, how constituted. 
 
 ed the terms of it ; they never can be fuftainedto 
 annul the agreement ; although, where they are 
 very apparent, they may operate as a reafon for a 
 dedudion from the price. Still lefs attention 
 feems to be due to errors in the market-value of 
 any commodity. A miftake as to the nature and 
 qualities of a fubjed may be unavoidable ; but 
 every purchafer may inform himfelf as to the or- 
 dinary market-price ; and he is therefore more 
 readily fuppofcd to truft to his own flvill with re- 
 gard to it. By the Roman law, a remedy was 
 allowed againft fuch error when it rofe to a very 
 great extent \ but modern mercantile nations 
 have refufed any redrefs whatever againft errors 
 in the market-price of commodities, as prejudi- 
 cial to the intereft of commerce. 
 
 The fame views, it ftiould feem, with regard 
 to the effects of error and miftake, which apply 
 to other co^^enants, extend likewife, in general, 
 to contrads of inlurancc. If a veflel has been 
 infured, and it is afterwards difcovered that flie 
 was fo leaky and rotten at the commencement of 
 the adventure, as to be infufficient to perform the 
 voyage, even although there may have been no 
 fraud or concealment on the part of the afliired ; 
 yet there is here fuch a degree of error as will 
 invalidate the confent of the infurer. 
 
 Thcfc reafonings, however, with regard to 
 error, arc only applicable where a miftake has 
 occurred, which is not imputable to ^uj fault of 
 either of the contrading parties. It is only 
 
 whe:fe
 
 Effect of Fraud and Error. 45 
 
 where the merchant has fubmitted his goods 
 fully and fairly to the infpe6lion of his cuftom- 
 er, that no miilake will annul the fale, except 
 an error in fuhjlantialihus ^ a miftake which had 
 given rife to the agreement. 
 
 But, what if one of the parties has, without 
 fraudulent defign, from culpable inattention 
 and negligence merely, or from ignorance, mif- 
 led the other by erroneous information ? In 
 fuch a cafe, it will not be neceflary, in order to 
 annul the contract, that the miilake committed 
 fhould be of a nature fo important. Any mif- 
 take, whether it refpects the qualities or 'value 
 of the fubjed: ; not only fuch as led to a bargain 
 at firft, but fuch as enhanced the price of the 
 commodity, will invalidate the confent of par- 
 ties. 
 
 Of this variation from the general effedt of 
 error, the contrail of infurance affords feveral 
 examples. 
 
 Suppofe, on the one hand, the merchant 
 fhould communicate information to the underwri- 
 ter, that the veffel was fafe in port, when, in 
 reality, the fa 61 was otherwife ; or, fuppofe, 
 on the other, he conceals a letter of advice^ in- 
 forming him that the fliip had failed before a 
 particular day. If either the mifrcprefentation or 
 concealment was intentional, the policy is void, 
 us being founded on fraud. But granting the 
 affured to have acted without defign, from mere 
 •jve'ifight, or ignorance of what was proper to be 
 
 clone;
 
 46 A VALID Insurance, how constituted. 
 
 done ; the queflion will be. Whether the mifre- 
 prefentation or concealment is material? that is, 
 whether the infurer's hazard is affeded by it ; 
 and if the fmalleft variation of the rijk run from 
 that intended, is thereby produced, the confent of 
 parties rauft ftill be invalid. 
 
 The infurer, in the cafes above Hated, is feek- 
 ing to be free from a bargain which he confiders as 
 unequal ; he is therefore endeavouring to avoid 
 actual lofs, as well as the alTured. He has been 
 drawn into that bargain without any mifcon- 
 dud of his own ; for he aded reafonably in 
 trufting to the information of the other party ; 
 and he was entitled to expedl from him a full 
 communication with refpedt to the extent of the 
 rifk. 
 
 But the ajfiired does not appear free from the 
 imputation of fault in the tranfadion in que- 
 flion. Every peribn who engages in infuran- 
 ces knows, or ought to know, how much the 
 underwriter muft depend on the information of 
 his alTured ; and the latter ought therefore to be 
 upon his guard not to communicate what may 
 mijlead. He ought to be aware of the iituation 
 of mutual truft and confidence in which he 
 Hands with his party ; and he ought to be ex- 
 tremely careful not to conceal. A moderate de- 
 gree of attention might prevent both ; and he 
 appears guilty of grofs negligence, who falls in- 
 to either. 
 
 This
 
 Effect of Fraud and Error. 47 
 
 This diftindion between the efFeds g? Jlmple 
 error, and imfreprefentation or concealment, is far- 
 ther itrengthened by views of expediency. 
 
 In the cafe of a miftake which has not arifen 
 from the information given by either of the par- 
 ties, there is no harm in fuflaining the contrad, 
 unlefs the miftake is of great magnitude : But 
 it would be highly dangerous to give fupport, in 
 any extent, to a bargain, where an error has 
 originated from the ad and deed of one of thpm. 
 This would be opening a door to difhoneft arti- 
 fice ; and the pretence of inattention and igno- 
 rance would be always at hand, as a cover to 
 fraudulent intention. 
 
 Every inftance of mifreprefentation and con- 
 cealment, therefore, however unintentional, if it 
 varies the rijk undertaken, in the minuteft par- 
 ticular, from that undeiflood, deftroys the confent 
 of parties, and annuls the contrad. It implies, 
 not only miftake, but mijiake founded on fault, 
 " Culpa lata,''^ fay the civilians, " aquiparatur 
 *' doloJ'"' Mifreprefentation and concealment, in 
 all cafes of infurance, carry Vv^ith them a degree 
 of grofs negligence, v/hich is a fort of conflruc- 
 tive fraud in the eye of law, to the effed of de- 
 ftroying every obligation founded upon it. 
 
 Thefe principles now ftated, with regard to 
 fraud, error, and fault, will be found to operate 
 in a variety of queftions that occur in the/ubjed 
 of infurance. We may, in this view, coniider, 
 the effed of diredl fraud of any kind j — 0^ er- 
 roneous infortnation •,— -of mutual miftake, 
 
 Szcr,
 
 48 A VALID Insurance, how constituteij(c 
 
 Sect. I. Of dire El Fraud. 
 
 I. Whenever, in the //y? place, the confent 
 of either the allured or underwriter has been eli- 
 cited by dired fraud, or by diflioneft artifice of 
 any kind, there can be little doubt that fuch 
 confent muft be totally without effed. The 
 contract is null and void from the beginning. 
 
 Of this a variety of examples may be produ- 
 ced'; as where a perfon infures a rotten fhip, 
 and contrives to have her funk ; of which we 
 have an inftance in the cafe of Firebrafs v. Per- 
 kins^ quoted in Molloy *. Or where a perfon 
 infures goods not fliipped, or relands them, 
 with a view to defraud the underwriters; of 
 which likewife a variety of examples mull fuggeft 
 themfelves. But the following cafe may afford 
 fuflicient illuftration of fo clear a principle. 
 
 Whittingham v. Thornborough. 
 
 J. S. and others came to the infurance-office, 
 and brought a policy to infure, for a year, the 
 life of A, upon which they had no concern or in- 
 tereit depending. The policy run, " Whether 
 " interelled or not interefted." In order to 
 draw in fubfcribers, they agreed with M, a 
 known merchant upon the Exchange, and a 
 leading man in fuch cafes, to fubfcribe firfl; ; but 
 in cafe A died within the year, M was to lofe 
 
 nothing 
 * B. 2. c. 7. § 5,
 
 Direct Fraud. 49 
 
 nothing, but, on the contrary, was to fliare what 
 fhould be gained from the other fubfcribers. Upon 
 the credit of M's fubfcription, feveral others ha- 
 ving enquired of M. about A, who was his neigh- 
 bour, fubfcribed hkewife. A died in four months, 
 and the bill was to be reheved againft this po- 
 licy. Thefe fads being all confeifed by the an- 
 fvver, the policy was decreed to be delivered up, 
 and the premium to be repaid, the plaintiff de- 
 ducing thereout his colts. The court faid^ ** In- 
 *' furing was firft fet up for the benefit of trade, 
 "that when a merchant happened to have a 
 " lofs he might not be undone by it, the lofs 
 " in this way being borne by many. But if fuch 
 " ill pradlices were ufed, it would turn to the 
 " ruin of trade, inftead of advancing it." Preced. 
 in Chancery, 20. HiL 1690. 2. Eq. Ahr. (^'^S' 
 
 2. Dired fraud in infurance, not only vacates 
 the obligations of the innocent party, but ren- 
 ders him who has been guilty of it^ the proper 
 object of punilhment. 
 
 " Any perfon,'* fays the Ordinance of Stock- 
 holm, " making ufe of artifice, fraud, and fai- 
 " lacy, in any matter of infurance or average, 
 " ihall not only make good to all parties concern- 
 " ed, all the inconveniencies and damages they 
 " may have received thereby, but likewife, on 
 *' account of his offence, fhall, according to the 
 " circumftances of the cafe, and the prefcription 
 *' of the penal laws enaded in our ordinance a- 
 
 G ** gain ft
 
 50 A VALID Insurance, how constituted. 
 
 " gainll criminals, be punilhed in his ellate, ho- 
 '* nour, and life*.'* 
 
 From fimilar views, where fraud has interven- 
 ed in a contrad of infurance, the obligation 
 of the innocent party is not only vacated, fo far 
 as it appears to have originated from the deceit 
 employed, but it is cut down altogether, as a 
 puniihment for difhoneft intention. Thus, if a 
 merchant fraudulently infures his Ihip or cargo 
 beyond its real value, the infurance is not re- 
 ftrided to the real amount, but the policy is re- 
 duced in totum. 
 
 The different fpecies of fraud in relation to in- 
 furance, as they differ from each other in kind 
 and in degree, are in Britain the fiabjects of an 
 arbitrary punilhment. There is one fpecies of 
 fraud, however, which has been declared felony, 
 by exprefs flatute. I mean the fraudulent de- 
 llroying or finking of fhips. 
 
 It is unnecefTary to recite the earlier flatutes 
 which have been enacted upon this fubjed. By 
 ain ad of 4th Geo. I. it is provided, " That if 
 *' any owner of, or captain, mafter, mariner, or 
 " other officer, belonging to any fliip, fhall wil- 
 " fully call away, burn, or otherwife deflroy 
 " the Ihip, of which he is owner, or unto which 
 " he belongeth ; or in any manner of way di- 
 *' red, or procure the fame to be done, to the 
 " prejudice of any perfon or perfons, that fhall 
 
 " underwrite 
 * See the foreign ordinances; pajfm. Mag. v. 2.
 
 Direct Fraud. 51 
 
 " underwrite any policy or policies of infurance 
 " thereon, or of any merchant or merchants, 
 " that fhall load goods thereon, he fhall futfer 
 "death." 
 
 And by another a<5l, nth Geo. I. it is enad:- 
 ed, " That if any owner of, or captain, mafter* 
 " officer, or mariner, belonging to any Ihip or 
 ** veffel, Ihall wilfully call away, burn, or other- 
 *' wife deflroy the Ihip or veiTel of which he is 
 " owner, or to which he belongeth, or in any 
 ** ways direct or procure the fame to be done, 
 " with intent or deiign to prejudice any perfon 
 " that hath or Ihall underwrite any policy of in- 
 " furance thereon, or of any merchant that fliall 
 " load goods thereon, or of any owner of fuch 
 " ihip or velTel, the perfon offending therein, 
 " being thereof lawfully convicted, fliall be deem- 
 ** ed and adjudged a felon, and faall fuffer as in 
 " cafes of felony, without benefit of clergy." 
 
 From fome peculiarities of expreflion in thefe 
 ilatutes, which have been fuppofed applicable 
 only to the Englifh mode ot trial, it has been 
 doubted how far they extend to Scotland. The 
 queltion has been tried in two cafes; that of 
 Samuel Larnpro, in 175 1 ; and that oi Herdman, 
 M'lver, and M'Calluvi, fo late as the 1784. 
 In Lamprd'% cafe, the Judge-admiral refufed 
 to fultain adion upon the ilatutes. In that 
 of Herdman, M^Iver^ and M^Callum^ the Judge- 
 admiral had found, that the ftatutes did extend 
 to Scotland ; but his fentence was reverfed by the 
 
 Court
 
 52 A VALID Insurance, how constituted. 
 
 Court of Jufticiary. It is unneceffary to enter into 
 the particulars of thefe cafes, as by a recent ftatute 
 of his prcfent Majelly, in the courfe of the fumraer 
 1786, an exprefs enaament has taken place, re- 
 medying the imperfcaion of the law of Scot- 
 land in this refpcd, and declaring the crime of 
 fraudulently finking or deilroying iliips, to be 
 punifhable with death in that country as well as 
 in England *. 
 
 Sect. II. Effect of erroneous Informatioji ; or of 
 Miflake occafioned by the fault of the other Party. 
 
 Erroneous information comprehends two fpe- 
 cies, which differ in form, though not in fub- 
 ftance ; mifreprefentation and concealment. In 
 both cafes, the principle is the fame, whether a 
 falfehood be fuggelled, or a truth fupprelTed. 
 
 " Infarance," fays Lord Mansfield, *' is a 
 ' contraa upon fpeculation : The fpecial fads 
 ' upon which the contingent chance is to be 
 
 * computed, lie mod commonly in the know- 
 
 * ledge of the infared only ; the underwriter 
 
 * trufts to his reprefentation, and proceeds upon 
 '■ confidence that he does not keep back any cir- 
 ' cumitance in his knowledge, fo as to miflead 
 
 * the underwriter into a belief that the circum- 
 '■ fl:ance does not exift, and to induce him to 
 ' eftanate the rilk as if it did not exift ; the 
 
 *' keeping 
 * In the ad regulating the Court of Admiralty,
 
 fi 
 
 MlSTAKiP OCCASIONED BY FAULT. 53 
 
 •' keeping hackfuch circumjlances u a fraud; and 
 " therefore the policy is void.'* 
 
 A.lthough the fuppreffion lliould happen by 
 
 mijlake, without any fraudulent intention, yet 
 " ftill the underwriter is deceived, and the policy 
 *' is void ; becaufe the ri/k run is really diffe- 
 *• rejit froTn the rijk underjlood and intended to be 
 *' run at the time of the agreement." — 
 
 — " The policy would equally be void againd 
 ** the underwriter, if he concealed ; as, if he 
 " infured a fhip, on her voyage, which he pri- 
 *' vately knew to be arrived ; and an action 
 " would lie to recover the premium.*' — 
 
 — " The quellion, therefore, muft always be, 
 '' Whether there was, under all the circumftan- 
 *' ces, at the time the policy was underwritten, 
 '* a fair reprefentation or a concealment ? Frau- 
 *' dulent, if deligned ; or, though not defign- 
 " ed, varying materially the object of the policy, 
 *' and changing the rifk underftood to be run." 
 In Carter v. Boehm. 
 
 Under this head, feveral cafes may be diftin- 
 guifhed. 
 
 I. Upon the principles already Hated, if there 
 be any thing peculiar in the conjlruclion of the 
 Jhip, or the nature of the cargo ^ which is produc- 
 tive of extraordinary rilk, it ought to be expref- 
 fed in the policy, otherwife the infurer cannot 
 be fubjeclcd to the confequences of fuch peculi- 
 arity.
 
 54 A VALID Insurance, how constituted. 
 
 arity. In judging of the extent of the infurer's 
 obligation, we muft confider what circumftances 
 were in the view of parties at the date of the 
 contrad. The infurer is entitled to fuppofe, 
 that every thing refpeding the Ihip is in its or- 
 dinary fituation ; and he will not be obliged to 
 anfwer for misfortunes, of which he was not 
 aware, and therefore which he did not mean to 
 undertake. Thefe peculiarities, however, muft 
 in general be known to the affured, and the in- 
 furer ought to be freed from the effed of a con- 
 fent, which, fo far, appears founded in improper 
 and faulty concealment. 
 
 By the regulations of many foreign countries, 
 accordingly, there are certain commodities which 
 cannot be included under the general denomi- 
 nation of goods or merchandife^ but muft be fpe- 
 cified by name. Thus, by Ord* Rotterd. 1 72 1 , and 
 Amjlerd. 1744, "Ammunition, arms, gold, lilver, 
 " and jewels, muft be exprefsiy declared.'* 
 
 By the French Ordinance, all goods fubjed to 
 leakage, muft be exprefted in the policy ; and by 
 the Prujian^ all goods fubjecl to corruption and 
 leakage. In infurances made on Haves or cattle, 
 by the Ordinance of Spain, this circumftance 
 muft be declared in the policy, otherwife the in- 
 furers run no riik. Similar regulations are in- 
 troduced by the Ordinances of Hamburg, which 
 make an exception, among others, of *' goods 
 *' prohibited by powers at warj" by thofe of 
 
 Sweden ;
 
 Mistake occasioned by fault. 55 
 
 Sweden ; by the Spanijh IVeJl-Indian Laws ; and 
 by thofe o^ Florence in 1526 *. 
 
 It was formerly obferved, that infurance is pro- 
 hibited upon contraband goods ; and therefore 
 it follows, that the underwriter is not liable for 
 any lofs on fuch goods. The principle now ex- 
 plained prefents another reafon, wherever the in- 
 furer has been ignorant that the goods were con- 
 traband, viz. that he appears to have been led 
 by fraud and concealment to underwrite a cargo 
 which was attended with extraordinary rifk. 
 
 Another illuflration occurs, although the prin- 
 ciple does not feem to be carried its whole length. 
 By the Ordinance oi Amjlerdani and of Copenha- 
 gen, '* if a fhip ht fir-built, it mull be exprefled, 
 " otherwife, in cafe of lofs, the infurer is only 
 " liable for half the damage.'* 
 
 In all thefe cafes, the infurer fuffers a lofs by 
 the concealment : He undertakes a rilk great- 
 er than he intended ; the circumftances con- 
 cealed might, if difcovered, have prevented the 
 infurance altogether, or altered the terms of it; 
 and the fuppreffion of thefe circumftances im- 
 plies/^///? in the affured. 
 
 II. Upon precifely the fame principles, either 
 party is liberated from obligation, and his con- 
 fent to the contrad becomes null and void, if the 
 other has concealed any material advices relating 
 to the lituation of Ihip or cargo, with refped to 
 the accidents of the voyage. Such a fuppreffion 
 of fads either fuppofes fraud, or fuch negligence 
 
 and 
 * See Magens, vol. li. p. 7. Vol. 1. p. 9. 10.
 
 56 A VALID Insurance, HOW constituted. 
 
 and fault as ought to have the fame efFed with 
 fraud in annulling the contracl. 
 
 The ftrongeft cafe of concealment of advices, 
 is that alluded to by Lord Mansfield, in the 
 palHige above quoted, where the merchant gets 
 his fhip infured, knowing it to be loft ; or the 
 underwriter infures, knowing the veflel to be ar- 
 rived. There is an example quoted by Mr 
 Wesket, the cafe of Ratcliffe verfus Shulbred, 
 where the fraudulent concealment and mifre- 
 prefentation feems to fall very little Ihort of that 
 now mentioned. 
 
 I. But the principle maybe illuftrated in a va- 
 riety of inftances, from that degree of conceal- 
 ment which is fcarcelydiftinguifhable from fraud, 
 down to that which originates merely in blame- 
 able inattention. 
 
 D'ACOSTA V. SCANDERET. 
 
 J. S. having a doubtful account of his fhip 
 that was at fea, viz. that a Ihip like his was ta- 
 ken, infured her, without any information to 
 the infurers of what he had heard;, either as to 
 the hazard or circumftances which might induce 
 them to believe that his fhip was in great dan- 
 ger, if not aftually loft. The infurers bring a 
 bill for an injunction, and to be relieved ; and 
 Lord Macclesfield decreed the policy to be deli- 
 vered up with cofts, but the premium to be paid 
 back, and allowed out of the cofts; and his 
 Lordfhip laid, That the infured had not dealt 
 
 fairly
 
 Mistake occasioned by fault. 57 
 
 fairly with the infurers, that he ought to have 
 difclofed to them what intelHgence he had of 
 the fliip's being in danger, and which might in- 
 duce at leaft to fear that it was loft, though he 
 had no certain account. For if this had been 
 difcovered, it is impoffible to think that the in- 
 furers would have infured the fhip at fo fmall a 
 premium as they had done, but either would not 
 have infured it at all, or would have infifted on 
 a larger premium. So that the concealment of 
 the intelligence is a fraud, 1. Eq, Abr. 635* 
 Trill. 1723. 2. P. Will. 170. 
 
 Rook v. Thurmond. 
 
 Rook got infurance made on the fhip Polly, 
 from South Carolina to Cowes. The Ihip, on the 
 1 2th of July 1 741, failed from South Carolina for 
 Cowes, and on i8th July was taken as a prize 
 by the Spaniards. The defence infifted on for 
 the underwriter was, that the plaintiff had been 
 informed by a letter from Carolina^ by a fhip 
 called the Collet, that the Polly, the fhip infured, 
 had failed ten days or a fortnight before the fhip 
 Collet J and that the fliip Collet had arrived in 
 E?igla?id feven days before the infurance was 
 made ; and that the plaintiff had not given the 
 defendant information of this circumftance at 
 the date of the policy. 
 
 The Chief Juftice declared his opinion, that 
 the concealment infifted on was a fufficient cir- 
 cumftance to difcharge the defendant from the 
 
 H , policy ;
 
 58 A VALID Insurance, how constituted. 
 
 policy ; for he i^iid, that thofe contrads are 
 made upon a mutual faith and credit ; and that 
 to conceal fuch circumjlances which may make any 
 difference in the ad-venture is fraudulent ; for the 
 inlurer ought to have the advantage of judgment 
 upon them ; and that where there is fuch conceal- 
 ment, the infurance ought not to bind. But the 
 defendant not being able to make out this facl 
 to the fatisfadion of the jury, the plaintiff had a 
 verdia. i.Dicl. Tr, andCom. 148, i^thDec. 1743. 
 At Guildhall. 
 
 Hodgson v. Richardson. 
 The defendant infured the plaintiff on a cargo 
 of potafli, verdigrife, cotton, and other perifh- 
 able goods, *' at and from Genoa to Dublin ; the 
 " adventure to begin from the port of loading, 
 " liable to average." The cargo had been put 
 on board at Leghorn, Auguft icth \ and the vef- 
 fel had been originally bound for Dublin. Ha- 
 ving loft her convoy, flie had put into Genoa, 
 where flie had lain from the 13th Auguft, to the 
 5th January, when ftie failed. The infurance 
 was made January 2,0th, when thefe fads, though 
 known to the affured, were not communicated 
 to the underwriter. The veffel was ftiattered 
 and much damaged by a ftorm. A verdict ha- 
 ving been found for the plaintiff, a new trial was 
 moved for on the ground of material conceal- 
 ment. 
 
 L.
 
 Mistake occasioned by fault. 59 
 
 L. Mansfield. The fad here concealed is 
 material ; for who can fay, that no rilk was run, 
 or no damage incurred during the five months 
 ftay at Genoa. The policy is founded on mifrepre- 
 fentation ; for the expreJlion ufed implies, that 
 Genoa was the port of loading ; and, at the trial, 
 all the witneffes faid, that, by ufage, it was mate- 
 rial to acquaint the underwriter whether the in- 
 furance was to be at the commencement, or in 
 the middle of a voyage. 
 
 WiLMOT J. Where the fad averred by the 
 policy is not true, as here, that Genoa was the 
 loading port, I will not fpeculate whether it be 
 material or not. Although here the length of the 
 ftay at Genoa is very material, in the caie of fuch 
 perifliable commodities, 
 
 Yates J. Material concealment vitiates all 
 contrafts, upon principles of natural law\ And 
 this concealment was material. — The rule for a 
 new trial was -made abfolute. i. Blackjl. Rep. 
 
 463- 
 
 Stewart againji Mori son. 
 
 Andrew Morifon, owner, and James Morifon^ 
 freighter, of the lliip Three Brothers, then load- 
 ing with wheat at Koniiigfberg, for the Frith of 
 Forth, received intelligence of their veflel from 
 their correfpondent, by a letter dated on the 6th 
 September 1774, as follows: '* The whole cargo, 
 " I expect, will be ready to fliip to-morrow, fo 
 *' that you may take your meafures with regard 
 
 «* to
 
 6o A VALID Insurance, how constituted. 
 
 *' to the infurance.*' And again, on the 30th 
 September, by a letter dated on the 13th, in thefe 
 ^vords : " I have herewith the pleafure to cover 
 ** your bill of loading and invoice of 39 bolls 
 " wheat, Ihipped for your account per the Three 
 " Brothers, Captain Maule. Captain Maule is 
 " 710W ready to depart with the firft fair wind.''' 
 
 On the 7th October, James Mori/on wrote to 
 an infurance-broker in Edinburgh, to get L.200 
 infured for Andrew Mori/on on the fhip ; and in 
 his letter he added, " The vejjel was ejcpeSied to 
 *' be loaded at KonivgJl>erg ^ betwixt the i^th and 
 " 20th September.'''' Infurance was done accord- 
 ingly that fame day, by Stewart and others, at 
 i\ per cent. '' upon the Three Brothers, at and 
 " from Koninglberg."" And fubjoined to the 
 policy are the words of the letter, " faid fliip 
 " expected to be loaded,*' &c. 
 
 On the 7th 06tober, likewife, Ellis Martine^ at 
 the delire of James Morifon, wrote to another 
 infurance-broker, to get infured, on account of 
 James, L. 150, on goods by the Three Brothers^ 
 '* the fliip warranted fafe the 13th idt. and no ad- 
 " -vice of her failing."'' This pohcy was under- 
 wrote by the fame people with the former, and 
 contained the claufe, ** warranted fafe the i2,th 
 
 The veflel failed from P'llaw on 13th Septem- 
 ber, but run afhore on the illand of Rugen, and 
 was totally loft. The infurers objected to pay- 
 ing the lofs, upon the footing of concealment 
 
 bj
 
 
 Mistake occasioned by fault, 6i 
 
 by the aflured. The Judge-admiral repelled the 
 defence. But when the queftion came before the 
 Court of SeffioR, Lord Gardenston, Lord Or- 
 dinary, pronounced the following judgment : 
 
 " Is of opinion, That although the perfon 
 '* who applies for infurance of a fliip or cargo in 
 *' foreign parts, is not bound to produce or com- 
 *' municate all his letters of intelligence concern- 
 " ing the voyage or adventure ; yet he is bound 
 fairly to communicate every material circum- 
 llance of his intelligence, from which any pro- 
 *' bability of hazard may arife. The Lord Ordi- 
 *' nary is alfo of opinion, That, in this cafe, the 
 *' infured have either wilfully concealed, or in- 
 " advertently omitted very material circumftances 
 *' of the hazard in their informations to the in- 
 *' furers. In one of the policies, dated 8th Oc- 
 *' tober, the ** fhip is warranted fafe on 13th Sep- 
 *' tember, and no accounts of her failing." But 
 *' thefe material circumftances are fupprelTed or 
 " omitted, viz, that the ihip had been completely 
 *' loaded between the 6th and 13th; that llie 
 *' was then ready to fail, and the bill of loading 
 " and invoices w^ere tranfmitted. And the in- 
 *♦ formation on the other policy is ftill more ex- 
 *' ceptionable, as it intimates to the infurer, that 
 " the fhip was only expeBed to be loaded betwixt 
 " the 13th and 20th of September, though the 
 ^' infured ha,d pojitive intelligence that Jhe was ac- 
 ** tually loaded, as above, betwixt the 6th and 
 ^*i3thj and that the mafter, after delivering 
 
 '' his
 
 62 A VALID Insurance, how constituted. 
 
 ** his bill of loading, and invoices, was then' - 
 " ready to fail with the firft fair wind. Upon 
 *' thefe grounds, the Lord Ordinary finds the in- 
 " furance void." 
 
 And to this interlocutor the Court, upon ad- 
 vi^\xig2i reclaiming petition, with anfwers, adhered. 
 Fac, Called. January 19. 1779. 
 
 Kay againjl Young, 
 
 Kay, mailer of the brig Robert, wrote from 
 Elfttieur, on the ^tb Augufi 1780, to Mr Pier/on, 
 merchant at Borrowjlounnefs-^^ I arrived here 
 " this morning, after a fine pafTage from Riga of 
 ** five days. I mean to leave this place this night, 
 " wi?id and weather permitting. As there is no 
 " convoy home foon, it will be needlefs to be 
 " longer. It is reported the privateers are very 
 *' plenty upon the coall of Norway ; however,' I 
 '* mean to take my chance. Delire Mrs Kay to 
 *' infure L. 36 Sterling." 
 
 This letter Mr Pierfon received on the i6tb. 
 Augujl ; and by that day's poll he wrote -MefTrs 
 Kinnear and Son of Edinburgh, to get L. ico 
 infured on the fhip Robert, and informed them, 
 that he had that day received a letter from Cap- 
 tain Kay, dated at Elfineur, on the 9th current, 
 when he was clear to fail. 
 
 Mr Pierfon's letter having been laid before the 
 underwriters in MclTrs Kinnear's office, on the 
 27th Augufi, they all exprefsly refufed to meddle 
 with the policy on any terms. 
 
 Mr
 
 Mistake occasioned by fault. 63 
 
 Mr Pierfon meantime had delivered Kay^s let- 
 ter to Mrs Kay^ who, on the 27th Auguft, wrote 
 to a Mr Grhidlay as follows : " Sir, The defign 
 ** of this is begging you would take the trouble 
 *' to get infured L. 40, on account of Mr Kay, 
 " from Eljineur to the port of Leith, on -wages 
 " and goods on board the brig Robert, himfelf 
 ** mailer, I had a letter yeflerday from Eljineur, 
 " wherein Mr Kay advifed me he propofed to 
 " run it, as no convoy would fail from thence 
 *' for fome time*." 
 
 The lliip having been taken, and an adion 
 brought for the infured values, the underwriter 
 pleaded in defence, that the information given 
 was defedive in a material point. For had it 
 been mentioned that the velTel was clear to fail 
 on' the 9th Auguft, fhe muft have, before the 27th, 
 been reckoned a miffing fhip. And from the 
 'conduft of the underwriters in MefTrs Kinnear's 
 ■ office, who had the real information before them, 
 there is every reafon to fuppofe that Mr Toung, 
 in the fame circumftances, would not have 
 meddled with the policy. 
 
 At firft Lord Elliock, Lord Ordinary, " affi^il- 
 *♦ zied the f defender, in refpedt proper informa- 
 •* tion was not given." Afterwards his Lordffiip 
 
 recalled 
 
 * TKe ace -^unt here given of the decifion Kay againjl 
 Young, is taken from the original papers, the ftatement of 
 this cafe in the Faculty Colledion being fomewhat inconi' 
 plete. 
 
 \ Acquitted the defendant.
 
 64 A VALID Insurance, how constituted, 
 
 recalled that judgment, and found the defender 
 liable in the infured values, " in refped there 
 ** was no fraudulent concealment of any circum- 
 '* ftance of hazard, in order to deceive the un- 
 derwriter.'* 
 
 The latter reclaimed * ; and the petition 
 being followed with anfwers, the Lords " alter- 
 " ed the Lord Ordinary's interlocutor," thus re- 
 turning to the judgment firlt given. Fac. Coll. 
 lotb Nov. 1783. 
 
 Shirley againjl Wilkinson. 
 
 In this cafe, a letter from the captain, men- 
 tioning, " That he was ready to fail, and that 
 " he certainly would fail early in Auguft," was 
 with-held from the underwriters. The regula- 
 tion of the premium depended upon the time of 
 failing, which determined whether the fhip was 
 to be coniidered as miffing. The queltion was. 
 Whether the information with-held was mate- 
 rial ? 
 
 A verdift having been found for the plaintiff, 
 the Court, on motion for a new trial, held, that 
 the whole intelligence fhould have been com- 
 municated to the underwriters, that they might 
 have been enabled to exercife their judgment. 
 The rule made abfolute. Mich. 22. Geo. III. 
 —MS. 
 
 The 
 
 * Prefented a bill to the Inner Houfe.
 
 Mistake occasioned by fault. 65 
 
 The following cafe is one of thofe which de- 
 pend on circumftances that may be viewed in 
 diifercnt lights ; but the general principle of it 
 ftrongly fupports the doctrine above Hated. 
 
 Grieve againjl Young*. 
 
 On the loth December 1779, William Grieve^ 
 merchant in Eyemouth, wrote to Meffrs Muat and 
 Aitken^ his correfpondents in Edinburgh, as fol- 
 lows : " Dear Sir, The Jean of Dunbar, Tho~ 
 " jnas Neil/on m^{\.eT, failed this afternoon's tide, 
 *' with a fair wind, for Alloa. If you pleafe you 
 ** may get L. 160 done upon her with Meffrs 
 " Kinnear, in cafe you fhould find the morning 
 ** coarfe, our mutual friend having left that for 
 *' me as I found caufe. You will do as you fee 
 ** prudent for our intereft." 
 
 As Eyemouth is not a poft-town, the method in 
 which the merchants there carry on their corre- 
 fpondence w^th Edinburgh, is by fending their 
 letters in the evening to the Prefs, or to Ayton, 
 two ftages upon the London road, where they 
 are taken up by the poll early next morn- 
 ing. The letter in queflion was fent to the 
 Frefs on the evening of the i cth, and arrived in 
 Edinburgh about fix o'clock afternoon of the 
 nth. About eight o'clock afternoon of the nth, 
 Mr Grieve's correfpondent got infurance done 
 
 accordingly. 
 
 I The 
 
 * This cafe has not been inferted in the Colle6tion of Scots 
 Decifions compiled by the Faculty of Advocates, but the 
 Author has taken it from the printed papers in the caufe.
 
 66 A VALID Insurance, how constituted. 
 
 The veflel, on the evening of the loth, after 
 the letter was dilpatched to the Pre/}; was driven 
 back. to Coldingham Bay, within two or three 
 miles qi Eyemouth; and Mr Grieve was informed 
 of the difafter, in confequence of the crew ha- 
 ving, about half an hour after eight in the morn- 
 ing of the nth, been taken afliore in a fifhing 
 boat. The fliip went to the bottom about ten 
 o'clock, in fight of Mr Grieve himfelf. 
 
 The departure of the London poll from the 
 Prefs ufually happens before feven in the morn- 
 ing ; but, on many occafions, it is fo late as nine, 
 ten, or eleven o'clock ; and fometimes, though 
 feldom, not before one or two afternoon. On the 
 nth December, the day in queftion, the poll did 
 not leave the Prefs till near ten o'clock ; fo that 
 the lofs of the veflel not only happened, and was 
 known to the aflured before the infurance was 
 made, but even before his letter had come into 
 the hands of the poft. Ayton is two, and the 
 Prefs five miles diftant from Eyemouth. ^ 
 
 The underwriters having infilled, that it was 
 Mr Grieve^s duty to have fent another letter to 
 the Prefs, on the morning of the nth Decem- 
 ber, countermanding his order, or to have 
 got back his letter from the poil-mafl:er there, 
 the queftion came before the Judge- admiral, 
 who found, *' That it was incumbent on Mr 
 *' Grieve, by exprefs, to have informed his cor- 
 ** refpondents of the difafter, in order that the 
 '* making of the infurance might have been 
 
 *' ftopt 5
 
 Mistake occasioned by fault. 67 
 
 ** ftopt ; which he had reafon to think 'would have 
 " reached Edinburgh time enough to have ftopt 
 ** the infa ranee, and which would have in fad 
 *'• reached Edinhurgh time enough for that pur- 
 *' pofe." 
 
 The caule having been removed into the Court 
 of Seffion, the aflured contended, That there was 
 no obligation upon any merchant to convey in- 
 telligence with greater expedition than by the 
 ordinary courfe of poll. That the fame reafon 
 which made it necelfary to fend an exprefs from 
 Eyemouth to Edinburgh in the prefent cafe, 
 would make it equally incumbent to fend ex- 
 prefTes, though at greater diflances, from Edin- 
 burgh to London, or from London to the Wejl 
 Indies y wherever there was, a bare poffibility of 
 outftripping the ordinary poft or packet. 
 
 The underwriters, on the other hand, argued. 
 That if the cafe had been reverfed, and Mr Grieve 
 had wanted to fave infurance, by notifying the 
 arrival of a vefTel, he would have found no dif- 
 ficulty in accomplifliing this, and he would 
 have made no fcruple of fending an exprefs to 
 Edinburgh. On fuch occalions, the duties ought 
 to be equal and reciprocal. But if it was not ne- 
 celfary to fend an exprefs, it was furely incum- 
 bent on Mr Grieve, if he meant to a6l fairly, the 
 moment he knew of the fliip's being driven back, 
 to have difpatched a melfenger to the Prefs, or to 
 Ayton, either to bring back his letter from the poft- 
 office, or to put in another, explaining the cir- 
 
 cumllances
 
 68 A VALID Insurance, how constituted. 
 
 cumftances as they then flood. And in either of 
 thefe cafes, no infurance would have taken place. 
 The Court were of opinion, that it was not in- 
 cumbent to fend an exprefs to Edinburgh ; but 
 being latisfied that Mr Grieve had time to counter- 
 mand the infurance, in the ordinary courfe of poll, 
 and that it was his duty to have done fo, gave 
 judgment for the underwriters. In Siimmer-fejjion 
 1782. 
 
 The following cafe is nearly akin to that now 
 ftated. At the fame time, it eftabliflies another 
 very important point, that the affured is liable 
 for the concealment or mifreprefentation of the 
 agent upon whofe advices the infurance is made. 
 
 FiTSHERBERT V. MaTHER. 
 
 On the 27th July 1782, W. Bundock of Pool, 
 agent for Fitjherbert, the plaintiff, contra6led 
 with Richard Thomas, a 'corn-fa6lor at Hartland, 
 for the purchafe of 500 quarters of oats, to be con- 
 ligned to William Fuller at Portfmouth, on the 
 plaintiff's account ; at the fame time, he dired- 
 ed Mr Thomas to fend him a bill of loading and 
 invoice, and another to Fitjherbert himfeif, at 
 Cuthbert Fijh€r\s, Ffq\ London. 
 
 Mr Thomas fhipped a part of the oats on board 
 the Jofephj which failed from Hartland on i6th 
 September 1782. And fame day he wrote to 
 Bundock and Fifier, covering invoice and bill of 
 loading. His letter to Bundock mentions, that 
 
 the
 
 Mistake occasioned by fault. 6g 
 
 the fliip had failed, "but I am afraid the wind 
 " is coming to the weftward, and will force her 
 ** back. I have fent a bill of loading and invoice 
 *' to Mr Yijhery that he may infure, if he likes, 
 *' as the equinox is near." That to Mr Fijher 
 mentions the ftiip having failed, and that '* this 
 *' evening appears ftormy." 
 
 About fix or feven o'clock in the evening of 
 the 1 6th September, (the fame day on which the 
 Ihip had failed) Mr Thomas heard a report that 
 the fliip was aground. And at fix o'clock in 
 the morning of the 17th, he knew that file was 
 loft. 
 
 On the 19th September Mr Fitjherhert wrote 
 to Mr FiJJjer^ defiring him to infure his intereft, 
 as foon as the bills of loading Jhould arrive from 
 Hartland. This letter was received at London 
 on the 20th. 
 
 The mode of fending letters from Hartland to 
 London^ is as follows : The letters are colleded by 
 a private hand, who goes with them from Hart- 
 land to Bideford, about one or two of the clock 
 on the day on which the poft fets out from Bide- 
 ford ; and the poft leaves Bidcford about nine 
 o'clock in the evening. It happened that the 16th 
 September was not a poft-day, fo that Mr Tho- 
 mas'' s letter did not leave Hartland till one o'clock 
 in the afternoon of the 17th; that is feven hours 
 after that gentkman knew of the lofs of the veffel. 
 The letter to Mr Fiflier was received in London 
 on the 20th ', and on the 21ft September, the de- 
 fendant
 
 70 A VALID Insurance, how constituted. 
 
 fendant underwrote " L. no on a cargo of oats, 
 " on board the fhipJoleph,at and fromHartland 
 " to Portfmouth," ^c. 
 
 Thefe were the material fads of a cafe fubmit- 
 ted by the jury for the opinion of the Court. 
 
 The counfel for the plaintiff made two que- 
 ilions. 
 
 i/?, Suppofing Thomas to be the agent for the 
 plaintiff, whether his negligence in not fending 
 an account of the lofs of the jQiip fhall vacate the 
 policy ? 
 
 The whole that is required in making thefe 
 
 kind of contradls, is, that they be made, bona 
 
 jidCy between the affured and infurer. If there 
 
 be a real difclofure, as between them^ the act of 
 
 a third party is not material. 
 
 idy Whether Thomas be the plaintiff's agent ? 
 All the orders which Bundock had given to 
 Thomas, were to fend fuch a quantity of oats on 
 board a fliip, and to fend a bill of loading : The 
 moment he had done fo, his agency ceafed. 
 
 For the defendant, it was contended. That 
 Thomas was the plaintiff's agent. Thomas fuf- 
 fered a letter to go to Fijher feveral hours after 
 he knew the Ihip to be loft ; he himfelf know- 
 ing, (as appears by his letter to Bundock,^ that 
 an infurance might be made. It makes no dif- 
 ference, that the letter was written before the 
 lofs was known ; becaufe it was not fent till af- 
 terwards. Mr Fitjherhert refers to Thomas's 
 letter \ this connecls the agent with the prin- 
 cipal ;
 
 Mistake occasioned by fault. 71 
 
 cipal ; and, without fuch a reference, there 
 would have been no infurance. Cafe oi Stewart 
 V. Bunlop, in H. of P. 1785 *. 
 
 Lord Mansfield C. J. " The policy has 
 been effedled by mifreprefentation, becaufc 
 the infurer was warranted to fuppofe the vef- 
 fel in fafety on 17th September, at twelve or 
 one o'clock, when Thomas'' s letter came away. 
 This mifreprefentation arifes from the agent 
 of the aflured. It fuppofes either fraud or 
 grofs negligence in him. A mifreprefenta- 
 tion founded on negligence, as well as on 
 fraud, will vacate the policy.*' 
 
 WiLLES J. *' This is a grofs mifreprefenta- 
 tion upon the part of the alTured's agent, for 
 whom the alTured mull be liable." 
 
 AsHURST J. *' The a6t of the agent mult bind 
 the principal ; for the principal muil be fup- 
 pofed to know whatever the agent knows. 
 There is no hardlhip here ; for if the fad had 
 been known, the policy could not have been 
 effeded." 
 
 BuLLER J. '* The plaintiff exprefsly refers to 
 Thomas'' s letter, and orders the infurance to be 
 
 made, 
 
 * It does not appear, that this cafe, Stewart agalnft Dunlof), 
 eflablifhes any principle whatever. It was a mere queftion , 
 of evidence, whether Stewart, the infured, had received in- 
 telligence of the lofs of his vefTcl j and the circumftance, 
 that a Mr Boog, who was much connefted with Stewart, 
 knew of the lofs, and a Mr Walkinpjaw, Mr Stewart's book- 
 keeper, had got a hint, was founded on among other pre- 
 fumptions. It feems to have no connexion with this queftion.
 
 72 A VALID Insurance, how constituted. 
 
 made, " when itfiall arrive:'' It was therefore 
 the foundation of the agreement." 
 
 " The principal, who builds information on 
 that of his agent, muit fuffer for his agent's mif- 
 reprefentation. When one of two innocent per> 
 fons muft fuffer by the fault of a third, the que- 
 rtion is, which of the two gave credit. Here it 
 was the plaintiff who trufted Thomas^ and he 
 muft take the confequences.'* 
 
 The pojlea to be delivered to the defendant. 
 7'ermly Reports, Mich. 1785. 
 
 Upon an idea fomething fimilar, it feems to 
 have been thought -neceflary, that the place 
 where goods have been loaded, fhould, in cer- 
 tain cafes, be exprelTed in the policy. 
 
 Cafe. If a fhip was laden at Aleppo, and comes 
 to Mejfina, to be infured, the adventure is to begin 
 from Mejfina ; but then it muft be exprelTed, that 
 Ihe was laden at Aleppo (as Pemberton, C. J. 
 faid, though the opinion of fome merchants was 
 not fo.) But if the infurance was of goods laden 
 at Aleppo, and they were laden at Mejfina, it might 
 make a difference. Skin, 54. Trin. 34. Car. 1. 
 
 " Infurance," fays the ordinance oi Amjier- 
 dam, " fhall not be done on the fliip's hull or 
 " goods, before the Ihip fhall be at the place 
 *' from whence one caufcs himfelf to be infured, 
 *' without efpecially exprefhng in the policy, 
 " that the fhip was not there arrived, under the 
 ** pain of nullity." 
 
 Another
 
 Mistake occasioned by fault. 73 
 
 Another regulation of the fame ftate requires, 
 that the affured fhall declare, whether the ihip 
 has failed or not, at the date of the policy, or 
 that he is ignorant upon that point, otherwife 
 the infurance fliall be null. See Bynck. ^eji. 
 Jur. priv. I. 4. c. 7. 
 
 2. It is here deferving of notice, that when 
 the affured is guilty of concealing circuniftances, 
 by which the rifk may be affected, the infurer 
 is liberated, and the policy vacated, from what- 
 ever caufe the lofs may arife ; and though it 
 may be occafioned by an accident totally diffe- 
 rent from that of which the danger was conceal- 
 ed. This is a confequence of the fraud, or fault 
 of the alTured, which, for any thing that appears, 
 may have given rife to the contrail; and which 
 therefore has the effedl to deftroy the policy ab i?ii' 
 tio, fo far as refpeds the obligation of the infurer. 
 
 Seaman v. Fonnereau. 
 On the 24th of Augufl 1 740, the defendant 
 underwrote a policy from Carolina to Holland. It 
 appeared that the agent for the plaintiff had, on 
 23d Augufl, received a letter from Cowes, dated 
 2ifl Augufl, wherein it was faid, " the 12th 
 " of this month I was in company with the fhip 
 '* Davey (the fhip in queflion) ; at twelve in the 
 *< night loll fight of her all at once ; the Captain 
 " fpoke to me the day before, that he was leaky, 
 *' and the next day we had a hard gale." — The 
 Hiip, however, continued her voyage till the 19th, 
 
 K when.
 
 74 A VALID Insurance, how constituted, 
 
 when Ihe was taken by the Spaniards ; and there 
 was no pretence of any knowledge of the adual 
 lofs at the time of the infurance ; but it was in 
 confequence of a letter received that day, dated 
 27th of June before. Several brokers were exa- 
 mined, who proved, that the agent ought to have 
 difdofed the letter; for either the defendant 
 would not have underwrote, or he would have 
 infilled on a higher premium. And the C. J. 
 was of that opinion, and declared, that as thefe 
 are cojitrads on chance, each party ought to 
 know all the circumflances ; and he thought it 
 not tnaterial that the lofs was notfuch a one as the 
 letter imported ; for thefe things are to be con- 
 lidered in the fituation of them at the time of the 
 contract, and not to be judged of by fubfequent 
 events : He therefore thought it a ftrong cafe for 
 the defendant, and the jury found accordingly. 
 Sttangef 1183. 16. Geo. II. 
 
 3. The danger of fraud upon the part of the 
 alTured, by concealing advices, and procuring 
 infurance after he knows a lofs to have happen- 
 ed, is fo obvious and itriking; at the fame time, 
 it is fo difficult to detect dilhonefty of this kind, 
 by afcertaining the exad Hate of the affured's 
 intelligence, that many foreigiT nations have, in 
 certain fituations, been led to adopt a prefump- 
 iion of concealment againlt him. If infurance is 
 made after a lofs has happened ; and if it is pro- 
 hable, calculating intelligence to travel at a cer- 
 tain
 
 Mistake occasioned by fault. 75 
 
 lain rate, that the aflured had been informed of 
 the lofs, they prefume that fuch information was 
 adlually received, and they annul the policy on 
 the fcore of concealment. 
 
 A great variety of fuppofitions have, in this 
 view, been adopted with regard to the rate at 
 which intelligence may travel. The SpaniJJj Or- 
 dinance allows a league per hour on land ; the 
 Genryefe two miles per hoiir^ from the fpot of land 
 which the account firft reached ; that of Middle- 
 hurg allows three miles to two hours, whether by 
 fea or land ; and fo on '^. 
 
 By fome of thofe ordinances, as thofe of Genoa^ 
 France^ and the towns of Holland, this is merely 
 a prafumptio juris, which may be removed by 
 evidence, or even by the oath of the fufpecfled 
 party. But one or two Itates, Bilboa, for exam- 
 ple, have carried this matter the length of efta- 
 bUfhing a pr(Efumptio juris et de jure ; and it is 
 provided, that the " infurance fhall be null, 
 ^« without liberty of hearing it in judgment, or 
 " admitting any proof that the party may wifh 
 *^ to bring, that he had no advice, good or bad," 
 is'c. 
 
 All thofe regulations, however, allow parties 
 to provide againft the efFed of this prefumption, 
 by an exprefs llipulation, infuring " notwith- 
 ** Handing good or bad advices" 
 
 The Ordinances oi Antwerp (in time of Phi- 
 lip 11.) from a fimilar jealoufy, prohibit all in- 
 furance 
 
 * For the regulations of different countries in this refnet^l, 
 fee Magens, vol. 2.
 
 ^6 A VALID Insurance, how constituted, 
 
 fu ranee after the rifk has once commenced. The 
 early regulations, it Ihould feem, of mercantile na- 
 tions, are often marked by an extreme fufpicion of 
 fraud. The reafon is obvious. Merchandife, in an 
 early period of fociety, is not fufficiently under- 
 flood, to fatisfy thofe who pradife it, of the ad- 
 vantage of fair dealing ; and among people ad- 
 dided to a military life, it is not attended with 
 that refpedtability which produces an attention 
 to charader. The Jews, who were the firft trad- 
 ers of Europe, were defpifed for being fo \ and 
 were therefore in all probability lefs fcrupulous 
 in their dealings. 
 
 In England, no fuch prefumption of conceal- 
 ment, as that above mentioned is admitted, and 
 every policy continues valid, although made af- 
 ter a lofs has happened, unlefs the fufFerer pro- 
 duces evidence of adual fraud and concealment 
 by the other party. At the fame time, from the 
 difficulty, in many inftances, of adducing a di_ 
 red proof upon this fubjed, our courts have 
 been fatisfied with prefumptive evidence ; as was 
 the cafe in the late decree of the Court of Seffiony 
 in the queftion Stewart againji Dunlop, affirmed 
 by the Houfe of Peers in 1785. 
 
 4. A queftion may here arife, to what length 
 this neceffity of information extends. It can- 
 not be meant that parties are to give each other 
 information of every circumftance they know 
 refpeding the velTel or cargo ; this would be a 
 labour without end j and, were it required, 
 
 would
 
 Mistake occasioned by fault. 77 
 
 would afford a ground for vacating every in- 
 furance whatever. From the principles above 
 ftated, it mull readily occur, that the circum- 
 ftances which, in order to avoid the imputation 
 of fraudulent concealment, it is neceflary to 
 communicate, are only thofe that vary the rijk, 
 and, at the fame time, are not fuppofed to be al- 
 ready known to both parties, 
 
 " Either party," fays Lord Mansfield, (in the 
 cafe of Carter v, Boehrn) *' may be innocently 
 " lilent, upon grounds which are open to both 
 " for the exercife of their judgment ; aliud ejl 
 '■^ celare, aliud tacere ; neque enim id ejl celare^ 
 *' quicquid reticeas ; fed cum quod tu fcias^ id ig- 
 " nor are, emolumenti tui caufa, velis eoSy quorum 
 " interjit id fcire. — There are many matters as 
 ** to which the alTured may be innocently filent. 
 " He need not mention what the underwriter 
 " knows \fcientia utrimque par , pares contrahentes 
 *•'- facit. — The affured need not mention what 
 " the underwriter ought to know ; what he takes 
 " upon him/elf the knowledge of, or what he 
 " waves being informed of." 
 
 This may be illuftrated by the following 
 cafes : 
 
 Carter v. Boehm. 
 
 GeorgQ Carter, Governor of Fort Marlborough, 
 (or Bencoolen) procured an infurance upon that 
 fettlement, againfl capture by a foreign enemy, 
 *' for one year, from the i6th of Oclober 1759, 
 
 " till
 
 yS A VALID Insurance, how constituted. 
 
 *< till the 1 6th of Odlober 1760, interell or no 
 " intereft." The fort was taken by Coimt 
 D'Ej}ahig within the year. A verdid was found 
 for the plaintiff by a fpecial jury, and a new 
 trial moved for, on the objedion, that circum- 
 ftances were not fufficiently difclofed. 
 
 imo, Bccaufe the ftate and condition of the 
 fort was not difclofed ; ido, Becaufe the Go- 
 vernor did not difclofe that the French, not be- 
 ing in a condition to relieve their friends upon 
 the coaft, were more likely to make an attack 
 upon this fettlement than to remain idle ; ^tio. 
 That he had not difclofed his having received 
 a letter of the 4th of February 1759, from which 
 it appeared, that the French had a delign to take 
 this {tXXX^vciQnl the year before* 
 
 Lord Mansfield, in Hating the opinion of 
 the Court, obferved, that, as to the firfl, the un- 
 derwriter knew the Governor to be acquainted 
 with the ftate of the place, and that he could 
 not difclofe it, confiftent with his duty ; and he 
 knew, by the Governor's infuring, that the pof- 
 Hbility, at leaft, of an attack, was apprehended : 
 Knowing this, he underwrote without alking 
 any queftions ; by fo doing, he took the know- 
 ledge of the ftate of the place upon himfelf. 
 
 The fecond concealment relates to a mere mat- 
 ter of fpeculation or opinion ; with regard to 
 which the underwriter was as able to jud^-e as 
 the Governor. 
 
 As
 
 Mistake occasioned by fault. 79 
 
 As to the third concealment, of a letter rela- 
 ting to a defign, which the French are fuppofed 
 to have entertained at a former period, that does 
 not appear materially to vary the rijk at the date 
 of the infurance. The Rule difcharged, 3, Burr, 
 1905. Eafi. 6. Geo. III. 
 
 Thomson againfl Buchanan and others. 
 In fummer 1778, Thomfon had freighted a fhip, 
 the Grizzy, with a cargo to Gibraltar, from which 
 flie was to proceed to Malaga, and then, with a 
 new cargo, to return home to Leith. 
 
 The mafter of the fhip, on his arrival at Gi- 
 hraltar, wrote to his owner the following letter, 
 dated 28th September 1778. " Sir, This is to ac- 
 quaint you of my arrival here yefterday, after 
 * a long hard palTage, and to acquaint you, 
 that there is as much danger going from here to 
 " Malaga, as coming from England here. I hear, 
 ^' that the merchants at Malaga wont JJjip any 
 ** goods on board Englifh Jlnps , before they hear of 
 " a convoy to take them from there. I am going to 
 ** write Mr Ferrie to-morrow by poft, to hear 
 " what he thinks of it ; for there is a great num- 
 " ber of ihips at Malaga that is chartered, and 
 ** the merchants wontjhip aboard of them. They 
 " are fhipping aboard of Spanijh fhips for Lon- 
 " don:' 
 
 After receiving this letter, the purfuer got the 
 
 Ihip infured at Glafgow, by the defender, to the 
 
 '--> extent of L. 600, at the rate of 25 guineas ^^r 
 
 cent. ; 
 
 a 
 
 <(
 
 8o A VALID Insurance, how constituted. 
 
 cent. ; and there was a note fabjoined to the po- 
 licy, in thefe words : " The laft advice from Gi- 
 " braltar, was of 28th September 1778, and the 
 «' veflel arrived only the day before, and had a 
 *' cargo to difcharge. If faid fhip fails with 
 *' convoy from Malaga or Gibraltar^ bound for 
 ''England, and arrives fafe, l..^ per cent, Ihall 
 " be returned." 
 
 The fhip was taken the fame day flie failed 
 from Gibraltar, and carried into Almeria \ and 
 intelligence of the capture was received on the 
 morning after the policy was underwritten. 
 
 The underwriter defended himfelf on this 
 ground, that the policy was vacated by the con- 
 cealment of the letter of advice from Gibraltar, 
 The Judge-admiral in Scotland ** repelled the 
 defence." But the caufe being brought into the 
 Court of Seffion, the Lords <' fufpended the let- 
 " ters, fuftained the defences, and affoilzied." 
 
 The queftion being carried by appeal to the 
 Houle of Peers, it was pleaded by the alfureds 
 That although it is incumbent upon every per- 
 fon who offers a policy to an underwriter, to com- 
 municate all fads which may vary the rilk, and 
 of which the infurer mull be fuppofed to be ig- 
 norant ; yet it is not neceffary for him to com- 
 municate his own or his correfpondentsj|^d'^M/^- 
 txons upon the rifle of the voyage. That the let- 
 ter in quefl;ion contained nothing but certain o- 
 pinions of the Captain, founded upon circum- 
 ftances that ought to have been equally well 
 
 known
 
 Mistake occasioned by fault. 8i 
 
 known to the underwriters themfelves ; and they 
 appear to have been aware of a conliderable de- 
 gree of danger, by the high premium they took, 
 of 25/><?r cent* 
 
 The Court '* ordered and adjudged, that the in- 
 *' terlocutors complained of be reverfed ; and the 
 " decree of the Judge-admiral in Scotland affirm- 
 ** ed.'* Fac. Coll. June lo. 1781. Coll. cf appealed 
 Cafes y March 13. 1782. 
 
 This decilion feems to be well founded. There 
 is a clear diftindlion between a general danger 
 attending the trade, and a rifk to which the veffel 
 affured may in particular be expofed. The former 
 ought to be known to the underwriter as well as 
 to the aiTured. 
 
 Mayne v. Walter. 
 
 The fliip infured was warranted Portuguefe 
 property. She had an Englifli fupercargo on 
 board, which was know^n to the affured plaintiff, 
 but had not been communicated to the defendant 
 underwriter. By a commercial ordinance of 
 France, " If the fupercargo of any trading veffel 
 *' be a fubjed: of a ftate at war with France, the 
 ** veffel ffiall be lawful prize." 
 
 Lord Mansfield. It is not faid that the plain- 
 tiff knew of this ordinance, which is diredlly conr 
 trary to the law of nations. The court never heard 
 of it before : Probably it was unknown to both 
 parties. But it was a circumitance refpeifling 
 the hazard of the adventure, which the underwri- 
 
 L tors
 
 82 A VALID Insurance, how constituted. 
 
 ters themfelves ought to have known. They 
 took the rifk therefore, and mull be the fufFer- 
 ers. Judgment for the plaintiff. M. 23. G. Ill, 
 MS, 
 
 Court againji Martineau. 
 
 The E^ffex of Liverpool captured a fhip and brig 
 off the coafi: of Ireland, bound from St Eujlatia to 
 Amjlerdam. The owners of the EJfex, refiding at 
 Liverpool, ordered infurance upon the prizes to 
 be made in Lo7idon, The policy was, " At and 
 •* from fea to Liverpool, on the Zee Fortune^ 
 " warranted well the 28th January 1781." 
 
 On Sunday, 4th February, the afllired, who 
 was alfo a part owner, fent an exprefs to his 
 broker, with an account of the brig, but expref- 
 ling great furprife about the fhip, and ordering 
 farther infurance on her, adding, that if fhe ar- 
 rived on Monday morning, he would fend an- 
 other exprefs. This exprefs reached the broker 
 on Tuefday the 6th. On Wednefday, not ha- 
 ving received the other exprefs, the broker got 
 the policy underwrote at 50 guineas per cent. 
 The non-arrival on Sunday could not have been 
 known hy poji in London, till Wednefday after 
 the policy was underwritten. But, on Tuefday 
 6th February, an entry in Llyod's books, coming 
 from the afTured, was put up before the poll 
 came in, mentioning the capture by the EJfex, 
 that the brig was at Crookhaven, the Ejffex at 
 Liverpool^ and the fhip not arrived. The lofs of 
 
 the
 
 Mistake occasioned by fault. 83 
 
 the fhip was known at Liverpool, time enough 
 to have prevented the infurance hy an exprefs. 
 
 Court, the infurer, brought an adion, upon 
 the footing of material concealment, to recover 
 the infurance-money which he had paid. Bul- 
 LER J. before whom the caufe was firft tried, 
 directed the jury to find for the plaintiff, on an 
 opinion that the concealment was material: 
 Lord Mansfield was of a different opinion. A 
 verdict was found for the defendant. There 
 were fimilar verdidts in feveral caufes tried at 
 Lancalter. Upon motion for a new trial, they 
 came all on together. 
 
 Lord Mansfield (after the argument), ob- 
 ferved that " this was an infurance from fea to 
 *^ Liverpool. Would not this policy be void, if 
 ♦* underwritten after the arrival?" 
 
 It was anfwered for the defendant, that it 
 would not, unlefs one of the parties knew of the 
 arrival. In moft cafes of policies on fhips abroad, 
 the event mult be over before the infurance is 
 jnade. 
 
 After the Court had taken time to advife. 
 
 Lord Mansfield faid, Nothing is clearer 
 
 than that a policy is good, though the fliip be 
 arrived. 
 
 This adtion is grounded on the letter fent ex- 
 prefs, on the Sunday after the poft went out, fta- 
 ting that the " fhip was not arrived, and he fear^ 
 " ed was loft ;" from which the entry had been 
 made in Lloyd's books. The promife to fend an 
 
 cxprcfs
 
 84 A VALID Insurance, how constituted. 
 
 exprefs did not affert the broker's knowledge ; 
 it was not executed \ and befides, it communi- 
 cated nothing but what the broker knew other- 
 wife, that every affured, in the defendant's fitu- 
 ation, would undoubtedly fend an exprefs to pre- 
 vent the infurance, if the Ihip arrived ; and this 
 the underwriters themfelves muft have known. 
 The broker knew on Tuefday that the fhip was 
 not arrived ; and he had emphatically told this to 
 the underwriters, by offering fo high a premium 
 as 50 guineas. The infurers muft have fuppofed 
 that the entry in Lloyd's and the broker's intelli- 
 gence did not come by poft. But, the affured 
 is only bound to communicate the whole refult 
 of his intelligence, not the ground or means of 
 it. If the underwriter wifhed for farther infor- 
 mation how the accounts came, he fhould have 
 enquired farther ; the broker faid nothing to 
 miflead him. By not afking how they came, 
 the plaintiff waved the enquiry. The rule dif- 
 charged Mich. 23. Geo. 111. iijl Nov, — MS. 
 
 III. The fame general reafoning is applicable 
 where the affured, inftead of concealing the 
 truth, actually mifreprefents the fituation of the 
 fubjedt infured. 
 
 If the affured is guilty of a wilful mifreprefen- 
 tation, the contract will be void, upon the head 
 of fraud ; if the erroneous information is not the 
 effed of intention, the queftion muft be, whether 
 the miftake into which the underwriter is led, 
 be material or not ; that is, whether he has been 
 
 induced
 
 Mistake occasioned by fault. 85 
 
 induced to form a conception of the rifk, as dif- 
 ' ferent from what it is in reality. 
 
 It is impoffible to fix, by a general rule, what 
 degree of mifreprefentation is held to be material, 
 and what not. This mud vary according to the 
 circumflances of each cafe ; according as the mif- 
 take produced by it occaiions a fenlible differ- 
 ence between the hazard undertaken, and that 
 underflood. This may be illuftrated by ex- 
 amples. 
 
 Before proceeding to thefe, it is to be obferved, 
 that a reprefentation of fads, made to one under- 
 writer, is conftrued to have been made to all 
 that fubfcribed after him ; becaufe the latter are 
 fuppofed to have been, in fome degree, induced 
 to fign, from the authority and example of thofe 
 that preceded. 
 
 M'DowALL againjl Frazer. 
 
 This was an adlion upon a policy of infurance 
 on the ** fhip the Mary and Hannah^ from New 
 *' York to Philadelphia." At the time when the 
 infurance was made, which was in London, on 
 30th January, the broker reprefented the litua- 
 tion of the Ihip to the underwriter, as follows : 
 *' The Mary and Hamiahy a tight vejfd, failed with 
 *'' fever al armed Jhips^ and was feen fafe in the 
 *' Delaware on the i \th December, by xijhip which 
 *' arrived at New TorV In fad, the veffel 
 was loft on the (^th December, by running againft 
 a chevaux de frife, placed acrofs the river. On 
 
 a
 
 86 A VALID Insurance, how constituted. 
 
 a trial before Lord Mansfield at Guildhall, a 
 defence was founded on the mifreprefentation as 
 to the time the flrip was feen ; and the jury 
 found for the defendant. — Motion for a new 
 trial. 
 
 On the part of the plaintiff, it was admitted, 
 that a reprefentation, if fraudulent, or erroneous 
 in a material point, annuls the contrad. But it 
 was contended, that the reprefentation in the 
 prefent cafe, was not alleged to be fraudulent ; 
 and that, although it was erroneous, the miftake 
 was not in a material point : That the meaning 
 of the reprefentation was to inform the under- 
 writer that the Ihip had got fafe through two- 
 thirds of her voyage from New York, and beyond 
 the reach of capture ; and fo far as related to this 
 material part, the reprefentation was perfedly true. 
 
 The court were unanimous, that the mifrepre- 
 fentation, as to the time in which the vefTel had 
 been feen in fafety, was material^ and that the 
 verdid was right. Douglas Reports^ i6tb No^ 
 'vetnber 1779. 
 
 Barbour againji Fletcher. 
 
 Two underwriters, Shulbred and Fletcher, had 
 underwritten on the fhip the True Blue, at differ- 
 ent times ; Shulbred firft, Fletcher afterwards. 
 
 It appeared, that when Shulbred figned the 
 policy, in March 1778, the broker was getting 
 feveral others, on other fliips, fubfcribed at the 
 fame time, all belonging to the fame owner, and 
 
 faid,
 
 Mistake occasioned by fault. S7 
 
 faid, fpeaking of them all, — " Which veffels^r*? 
 *' expedled to leave the coaft of Africa in No- 
 *' vember or December 1777." In fadl, the 
 veflel in queflion had failed in May 1777, and 
 Sbulbred fwore that if he had known that cir- 
 cumflance, he would not have ligned. — Verdi6l 
 for the plaintiff. 
 
 On motion for a new trial, it was infifted, in 
 behalf of the defendant, that a reprefentation to 
 the firft underwriter is confidered as made to all 
 who fign after him ; and that the prefent repre- 
 fentation was material. 
 
 Lord Mansfield admitted, that a reprefenta- 
 tion to the firft underwriter extends to the others ; 
 but this is not material : It related only to what 
 was expe6led, and the underwriters did not en- 
 quire into the ground of the expedlation. This 
 was lying by till after a trial, in order to make 
 an objedion, if the verdi6t fliould be for the 
 plaintiff. — The rule for a new trial difcharged. 
 Dougl, Rep, 2C)tb November 1779. 
 
 Upon the fame principle with this decifton, if 
 it is ftated that a veffel is believed to be in a cer- 
 tain fituation, the reprefentation is not material : 
 The underwriter ought to enquire into the 
 grounds of the belief. See Cooper^s Rep. Paw- 
 fon V. Watjbn. 
 
 Stackpole -z;. Simon. 
 
 This was an . infurance on the life of Mr 
 ^heppejf for a year-, he died within the term of 
 
 the
 
 88 A VALID Insurance, how constituted. 
 
 the policy. The broker who efFeded the infu- 
 rance told the underwriter, that the gentleman for 
 whom he aded would not warrant, but from all 
 accounts, he (the broker) believed it to be a good 
 life. It appeared that Mr Sheppey had, before 
 his death, gone to the fouth of France, for the 
 benefit of his health, or to avoid his creditors. 
 Lord Mansfield. There is here no warranty ; 
 the underwriter therefore takes the rilk of its be- 
 ing a good life upon himfelf. If, no doubt, there 
 be a concealment of what is known, with regard 
 to the flate of health, it muft vacate the policy as 
 a fraud. But here, the broker does not pretend 
 to any knowledge of his own, but fpeaks accord- 
 ing to his bell information. Verdidt for the 
 plaintiff. At Guildh. Hil. Vac. 1779. See Park's 
 Syjlem of Marine Infiirance, p. 497. *. 
 
 It 
 
 * The author takes this opportunity of acknowledging the 
 ufe he has made of a late very full and ingenious treatife 
 on infurances, which has appeared fince a part of his MS. 
 went to the prefs. With the greatefl part of the cafes ad- 
 judged by the Englifh courts, not formerly publifhed, he had 
 been furniflied, previoufly to the appearance of Mr Parkas 
 Syji^nt, by a friend in London, upon whofe accuracy he" 
 could rely } and he has now obtained additional fatisfadlion 
 upon that point, by comparing his own MS. notes with the 
 ftatement of fuch cafes given by Mr Park. He has, how- 
 ever, ufed the freedom, in a few inflances, where he had not 
 been furnifhed with the adjudged cafe, to infert fuch an a- 
 bridgment of it, upon Mr Park's authority, as might illuftrate 
 fufficiently the principle in queftion > and in thefe inftances, 
 he has referred the reader to that Gendemau's publication.
 
 Mistake occasioned by fault. 89 
 
 It feems here necelTary to anticipate the fubjedl 
 of a future chapter, fo far as to obferve that a 
 reprefentation of faSls, which is intended only to 
 convey information, differs conliderably from a 
 warranty, or condition of the contradl. That the 
 latter mull be ftrictly adhered to, but the former 
 need only be true in general, fo as not to pro- 
 duce, in any feniible degree, a falfe conception 
 of the ri{k in the mind of the underwriter. It 
 may farther be noticed, that all verbal ftipula- 
 tions, and all communications written upon a 
 different paper from the policy, are held to be 
 merely repreftntations of fa6is ; but that what- 
 ever is written on the fame paper with the poli- 
 cy, is held to be a condition, which muft be lite- 
 rally complied with. 
 
 There are one or two claufes, however, in the 
 body of the policy, which feem only intended for 
 the information of the infurer, and have not the 
 etfed: of ftricl warranties. Confequently, it is 
 not of importance, although a miilake fhould be 
 committed in thefe particulars, unlefs that mif- 
 take be material; that is, unlefs it has affected 
 the infurer's conception of the rifk. 
 
 The claufe in every policy, fpecifying the 
 name of the 'vejfel and of the mqjler, feems to be 
 of this kind. The allured, in thefe claufes, means 
 only to communicate a piece of information to 
 the underwriter ; he does not intend to warrant 
 that the ftiip fliall have this or that name ; that 
 one man or another lliall go as mailer; and 
 
 M he
 
 po A VALID Insurance, how constituted, • 
 
 he accordingly fubjoins an explanation, in thefe 
 words : — " Or by whatever other name the fhip 
 ** fhall be called." — And, " or whoever elfe 
 " fliall go for matter in the faid lliip.*' 
 
 If a miflake, therefore, fhould be committed, 
 in the name of the fhip or of the matter, the 
 fame rule will hold, as in other cafes of mifre- 
 prefentation. If, notwithftanding the error, 
 parties were futticiently agreed about the nature 
 of the adventure, or of the fubjecl infured, the 
 bargain will fubfitt : But if the underwriter can 
 ttiow that he had been mijied by the erroneous 
 defignation or defcription in the policy, and that 
 he has aciually fvffered lofs, in this cafe the falfe 
 defignation appears to be material, and will 
 vacate the agreement. 
 
 Upon this principle, we may perhaps recon- 
 cile two or three decilions in different countries, 
 apparently inconfiftent, in cafes where the broker 
 liad miftaken the name of thejhip. 
 
 A merchant at Amfterdam got infurance 
 on his ttiip " Le Thomas, Capitaifie Pierre 
 *' Guion.^^ A lofs being incurred, the infurer 
 defended himfelf upon this ground. That the 
 fhip's name was not Le Thomas, but La Davphine 
 Galcre : That llie bore the infigiiia of La Daii- 
 phine Galere, and that name infcribed on her 
 ftern. 
 
 It appeared that this laft had been the old 
 name of the veflel ; but the owner not having a 
 paflport for her, and having one filled up with
 
 Mistake occasioned by fault. 91 
 
 the name Le Thomas, had got liberty from the 
 officer of the marine department to change her 
 name, and had got all the clearances in the 
 name of Le Thomas. The inferior courts iu 
 Holland decided for the infurer ; but the Senate, 
 by a majority, altered that judgment. 1722. 
 BynckerJ}}. ^i. Jar. Pr'rj. 1. ^ . r. 1 1 . 
 
 This deciiion, as fair as appears, mult have pro- 
 ceeded upon the principle, that there was no 
 evidence of the infurer having really been mif- 
 led, as to the fubjecl infured, at the time of fub- 
 Icribing. The infurer intended to underwrite 
 the flrip, belonging to a particular perfon, upon 
 a particular voyage, by whatever name that Ihip 
 might be called. 
 
 In the following cafe, a miilake, both as to the 
 name of the Jhip and of the Captain, was rectifi- 
 ed, where the underwriters could Ihew no detri- 
 ment. 
 
 Bates v. Graham, cl al. 
 
 Mr Crifp, in the Welt Indies, inltruded hia 
 correfpondent Mr Bates, to infure goods on the 
 Mary Galley of St Chriitopher's, Captain A. Hill 
 commander. Bates carried the letter to Stuhbs a 
 broker, who, by miltake, procured infurance 
 from the defendant, *' on the Mary, Captain 
 *' Ha'zlewood.''^ The Mary Galley was loft ; after 
 which, the infurers agreed to alter the policy, 
 and rectify the miftake. It was objeded at the 
 trial, tliat the Mary was a ftouter lliip than the 
 
 Mary
 
 93 A VALID Insurance, how constituted. 
 
 Mary Galley J and therefore the infurers ought 
 to have an increafe of premium for the altera- 
 tion : But it was held by Holt, C. J. that the 
 miftake might be made right ; and he cited a 
 cafe which happened when Pemberton was 
 C. |. : An infurance was made from Archangel 
 to the Downs, a?id from the Downs to Leghorn; 
 but there was 2i parole agreement, that the policy 
 fliould not commence till the fhip came to fuch 
 a place. It was held the parole agreement iliould 
 not avoid the writing. 2. Salkeld, 444. Decem- 
 ber 3. 1703. 
 
 In this cafe it is evident, from the infurers a- 
 greeing to redify the policy, that they conlider- 
 ed themfelves as not hurt by the miftake. 
 
 In the following cafe, however, there is evi- 
 dence that the infurer, in confequence of a mif- 
 take in the name, had a^ually formed a miflake 
 with regard to the fuhjeEl ; it appeared that 
 he had been led, contrary to the ufage of 
 thofe who are experienced in fuch matters, to 
 accumulate rifks upon one bottom ; and confe- 
 quently, quod nonfatis conjUtit de re, that parties 
 were not agreed about the fubjecl; of their bar- 
 gain. 
 
 Watt againfl Ritchie. 
 
 Ritchie underwrote an infurance on a fhip, 
 which belonged to Watt, by the name of the 
 Martha of Saltcoats, for a voyage from Chriftiana 
 in Norway to the frith of Clyde. Though this 
 
 name
 
 Mistake occasioned by fault. 93 
 
 name was mentioned to the infurance-broker, 
 by the perfon commiflioned to make the infu- 
 rance, and had been formerly borne by the vef-^ 
 fel, yet another appellation was given to her, 
 prior to the infurance, that of the Elizabeth and 
 Peggy of Saltcoats ; under which new and pro- 
 per denomination, the owners of the cargo, a 
 few days after, got infurance made from the 
 fajne Mr Ritchie. The velTel having been cap- 
 tured by a French privateer, Watt fued Ritchie 
 before the Court of Seffion in an adtion for the 
 infured values. 
 
 For the defender it was pleaded, That the 
 law requires the ftridell interpretation of con- 
 tradls of infurance, in favour of the underwriter. 
 Even the fmalleft deviation from the terms of 
 the contract will prove fatal to the infurance, 
 although producing no apparent prejudice to 
 the infurer, Bucha?ian v. Hiinter-Blair*. The 
 ri{k run mult be exadly the fame with that un- 
 derftood. Although then the miftake fliould 
 have had no tendency to injure the defender, 
 the contract would neverthelefs be void, as its 
 terms really refpected a nonentity, and ought 
 not to be extended, by interpretation, to any 
 adventitious meaning. In fadt, however, it bad 
 a tendency to hurt the underwriter, as it led 
 him, in oppolition to a maxim founded in the 
 experience of all thofe who are verfant in the 
 
 bulinefs 
 
 * This cafe of Buchanan v. Hunter-Blair, was reverfed on 
 appeal, after the dccifioa had taken place, Watt v. Ritchi:.
 
 94 A VALID Insurance, how constituted. 
 
 bufinefs of infurance, to accumulate different 
 riflvs on the fame bottom. Befides, fuch a pro- 
 ceeding might often become an engine of fraud ; 
 for fuppofe another velTel, the true name of 
 which was the Martha^ to have failed along with 
 the Elizabeth and Peggy ; in that cafe, the pur- 
 fuer might have claimed his infurance on either 
 of the two veifels upon which the lofs Ihould have 
 happened, though the premium had been paid 
 for one only. 
 
 It was anfwered for the affured. That no con- 
 cealment or inaccuracy is regarded as of import- 
 ance in this contradl, unlefs either fraudulent, 
 or materially varying the object of the policy, or 
 changing the rifk underltood to be run. Bur. 
 Rep. 'vol. iii. Carter v. Boehni. Nor is an er- 
 ror, merely as to the name of a fhip, which is 
 otherwife fufficiently diftinguifhed, of that im- 
 portant kind. Accordingly, in all policies re- 
 fped-ing fhips, and in the prefent one, thefe 
 words, " by whatever name the faid fliip lliall 
 ** be called," are to be found. A decifion was 
 like wife produced much in point, from the 
 ^(EJliones juris privati of Bynkerfchoek, lib. iv. 
 cap. II. p. 610. 
 
 The Lords, however, were of opinion, that a 
 facred Itridnefs ought to be preferved in the inter- 
 pretation of contracts relative to infurance ; and 
 therefore adhered to the judgment of the Lord 
 Braxfield, Lord Ordinary, which was in thefe 
 words : "In refpecl it is acknowledged by the 
 
 " purfuers.
 
 Mistake occasioned by fault. 95 
 
 '' purfuers, that their Ihip was regiftered by the 
 ** name of the Elizabeth and Peggy of Saltcoats ^ 
 ** finds, they have no claim againft the defender, 
 '* upon the infurance made by him on the fliip 
 " Martha of Saltcoats, there being no fuch fliip, 
 *' at leaft the true name being concealed or mif- 
 *• reprefented, by which the underwriter might 
 *' have been deceived ; therefore fuftains the 
 " defences, and aflbilzies the defender, and de- 
 *' cerns." Fac. Coll. 23^ January 1782. 
 
 In the following cafe, where the adventure 
 had been erroneoujly defcribed^ it does not appear 
 that parties were really under any miftake. 
 They had made their agreement according to 
 certain jottings, or a label, as it is called ; and 
 the policy had not been drawn out correfpond- 
 ing to that label. Here, undoubtedly, the erro- 
 neous defcription falls to be corredled, and the 
 bargain fuftained, according to the original in- 
 tention of parties. 
 
 MoTTEUX V. LoND. Ass. Co. 
 
 A had infured for B and plaintiff, his alTignees, 
 on the Ihip Eides, with the cargo •, and the entry in 
 the Company's book of the contract, was in fliort 
 ite7?is, called a label, which was thus : " At a?id 
 ''■from Fort St George to London, lofl or not 
 " loft ;" and the policy was foon after made 
 out, and taken in the following words: "That 
 <* the adventure was to commence from thefiip's 
 
 " departing
 
 r)6 A VALID Insurance, how constituted. 
 
 '« departing from Fort St George to London." 
 Before the infurance was made, the fhip was loft 
 in Bengal river, whither fhe had been fent from 
 Fort St George to refit. The bill was brought 
 to have the infurance-money paid, being L. 500, 
 as a lofs, &c. and founded the equity that the 
 policy was not made agreeable to the label, ac- 
 cording to which the rifk is to commence from 
 the fhip's coming Jirjl to Fort St George ; and the 
 going to Bengal to refit, being a thing of necef- 
 fity for performing the voyage, was no devia- 
 tion ; and the lofs being during that time, was 
 within the intent of the contract for the infur- 
 ing. Lord Chancellor Hardwicke faid, this was 
 not proper to determine here. The ijl quellion 
 is as to the agreement ; id, as to the breach ; 
 and doubted as to the agreement. The memo- 
 randum is not a printed form, as to the mate- 
 rial points ; and the policy muft be governed by 
 that, if not varied. The words in the memo- 
 randum or label {at Fort St George) include the 
 ftay of the fhip there ; and the policy follows 
 the words, but adds thus, viz. '* The beginning 
 *' of the adventure to be from the fhip's de- 
 ** parting from Fort St George for London ;'* 
 which excludes the rifk whilfl the fliip ftaid 
 there ; and this fcems an inconfiftency in the po- 
 licy, firft to defcribe the voyage at and from, &c. 
 and then to exclude the rifk, ^c. This feems a 
 mijlake in writing the policy, and is to be redi- 
 fied, as in the cafe of articles, or a fettlement ; 
 
 And
 
 '' Mutual Error. 97 
 
 and decreed the words to be added in the pohcy, 
 for the adventure to commence at and from Fort 
 St George. Viner. Ahr. tit. Bottomry -bonds , 
 Dec, 6. 1739. Atkyns, t, 545*. 
 
 Sect. III. Of mutual Error and Mifiake. 
 
 Hitherto of the effed: of frauds and of error 
 arifing from the negligence and fault of one of 
 the contracting parties. The effect of mutual 
 error, without the intervention of mifreprefenta- 
 tion or concealment, remains to be confidered. 
 It was formerly obferved, that, in this cafe, a 
 fuhjlantial error, or fuch a miftake, as, if corredl- 
 ed in time, would have totally prevented the bar' 
 gain, is necelTary in order to invalidate the con- 
 fent of parties. 
 
 !♦ Let it be fuppofed, therefore, in the firfl 
 place, that a mifiake has happened with regard 
 to the nature and qualities of the Ihip and cargo ; 
 that this error is mutual, the affured lying under 
 the fame mifconception with the underwriter ; 
 and that the former has faid or done nothing to 
 miflead the latter. Suppofe, for example, that, 
 from caufes unknown to either party, the velTel 
 has contracted a weaknefs in her hull, in confe- 
 quence of which, Ihe is conliderably cxpofed to 
 
 N the 
 
 * In the cafe, Hcnklc verfus R. Exch. 4[f. Co. collefted 
 by Ve%ey, I. 317, the xinderwriter failed in proving the po- 
 licy to be trroneoufly made out.
 
 98 A VALID Insurance, how constituted. 
 
 the danger of leaking, or of foundering. How 
 far will fiich a miftake vacate the policy ? 
 
 There is here one point abundantly obvious : 
 That the infurer never can be liable for the 
 confcquences of the fliip's abfolute incapacity, 
 from the beginning, to perform the voyage. 
 When a fhip, in the maritime phrafe, is not fea- 
 •worthy ; that is, where, from age, or natural de- 
 feft, fhe is infiifficient for the voyage^ no perfon 
 would knowingly infure upon her, becaufe it 
 would be fubjecling himfelf to a certain lofs. 
 Every infurance, therefore, muft proceed upon 
 this idea, that the velTel, (barring accidents, and 
 befide the ordinary tear and wear,) is able to ac- 
 complifh her part of the adventure. An owner 
 or freighter muil be fuppofed to 'yuarrant the 
 fliip's fufficiency, and every infurer to contrail 
 upon that faith and belief. The miftake here is of 
 a capital nature ; it is an error in fubjiantialibus, 
 which, if it had been corrected, would have pre- 
 vented parties from even entering upon terms*. 
 The obligation of parties muft be limited to thofe 
 
 rifks 
 
 * It does not appear, that the foreign authorities are, in ge- 
 neral, explicit upon this point. They fail to diltinguifh be- 
 tween two things which are very different, vi^. the pre-exijl- 
 ent (lefeB or infufficiency of t;he fubject, and its perijhahle na- 
 ture. The former deflroys the policy from the effed of er- 
 ror, the defeft being latent at the time of the agreemento. 
 'S>\xt \.\\e penjhable nature may he fore/een and expeEled, and 
 the infurer will be liberated, upon a totally different prin- 
 ciple. 
 
 The
 
 Mutual Error. 99 
 
 rifks which can be fuppofed to have been in 
 their view when they made the bargain. 
 
 Mills v. Roebuck. 
 MelTrs John and Thomas Mills purchafed, in 
 the year 1757, a French built {hip, which they 
 called the Mills Frigate ; and they employed her 
 in the Leeward-ifland trade. The firft colt of 
 the lliip was L. 900 ; befide this fum, her repairs 
 and outfit amounted to L. 1649, for the firft voy- 
 age. She was conftantly decked and repaired 
 for every voyage in the river Thames, in the beil 
 manner poffible, it being left to the Captain and 
 fhip-builder, to do every thing they thought pro- 
 per. 
 
 On the arrival of the Mills Frigate at St Kitt's, 
 in the year 1764, MeflTrs John and Thomas Mills 
 
 received 
 
 The French Ordinance fays, " The lofs, diminution, or 
 ** wafte, that may happen from the perijhable quality of any 
 ** thing, (hall not fall on the infurer." Magens, v. il. />. 173. 
 The Guidon, ch. v. art. 8. ftates the fame rule, but without 
 any farther difcrimination. See alfo Valines, i. 164. — 2. 80. 
 The infufhciency of a fliip is, no doubt, an effcSi of its pe- 
 rifliable quality. But this circumftance, the perijlnhlc na- 
 ture of a fubjeft, may appear in two ways j xft, The fubjeft, 
 in confequence of its perijhable nature, may have acquired 
 a total incapacity to accompliih the adventure ; and this fadt 
 may be latent at the date of the policy. In this cafe, the 
 contract is null, as founded onfuhjiantial error, idly, The 
 prccife Hate of the fubjeft at the time of the policy, and 
 the effects which mufl arife from its perijhable nature, may 
 be known, or forefeen and expe(fled, and yet the infurer 
 may not be liable for thefe confequences ; but this ariies 
 from different principles, which fhall be confidercd under 
 the doftrlne of ivear and tear of Ihip or car50.
 
 
 100 A VALID Insurance, how constituted* 
 
 received a letter from the Captain, dated St 
 Clirijlopher's, April 23. 1764, informing them, 
 that he ** arrived at Nevis, after a moll difmal 
 ** paffage, and violent gales of wind ; that the 
 *' fhip (trained fo much, by the preflure of fail, 
 ** they were obliged to carry on her in that great 
 " fea, that it v/as with the utmoil difficulty they 
 *' could keep her free ; that flie had fo loofened, 
 ** that they could not carry fail on the wind, and 
 
 feeing no probability of the wind's Ihifting, or 
 
 abating enough, to give a chance of beating 
 '* up, bore away for Nevis, in a weak, leaky and 
 ** diitreffed condition." 
 
 The broker, Mr Towgood, Ihewed the whole 
 of this letter to George Hayley, Efq; who had be- 
 fore underwrote this lliip to him feveral times, 
 particularly L. 400 the lail outward-bound 
 voyage ; alfo to the other underwriters. Mr 
 Hayley, although he expreffed doubts arifing 
 from it, began to write L. 300 at the common 
 premium ; but the broker telling him, that, con- 
 iidering the Captain's letter, he was too bold, he 
 altered it to L. 200. Mr Hayley, therefore, 
 knew every circumftance relating to the lliip, 
 which was known to Meffrs Mills ; he knew 
 alfo, that Ihe was a French built fhip, and confe- 
 quently liable to all the accidents, to which fliips 
 of that conftruclion are peculiarly fubjed:. 
 
 The iliip was warranted to fail, and did fail, 
 the 26th of July. On the 27th, in the evening, 
 {he fprung a leak, in fair weather; and being in 
 
 danger
 
 Mutual Error. ioi 
 
 danger of foundering, returned to St Kitt's, and 
 was condemned. The infured made a demand 
 on the underwriters, for the lofs of L. 50, 19 s. 
 per cent, on the fliip, and a total lofs on freight. 
 The underwriters pleaded that the fhip was i;z- 
 fufficientfor the 'uoyage. 
 
 The cafe was firlt tried in the Court of Common 
 Pleas, before Lord Camden, who diredled a verdict 
 for the affured ; but afterwards, oft motion for 
 a new trial, his Lordihip declared he had changed 
 his opinion, and the Court unanimoufly made the 
 rule abfolute. The affured then tried the quefti- 
 on, againft another infurer, in Exchequer, before 
 Lord C. £. Parker, when it appeared that, after 
 the Mills Frigate arrived at Nevis, (fome people 
 objeding to lliip their fugars in her, on account 
 of the damage referred to in the above mention- 
 ed letter), the Captain, to remove this fufpicion, 
 if a falfe one, or to prevent further ill confe- 
 quences, fhould it prove well grounded, requeft- 
 ed all the Captains then loading in the ifland 
 to furvey her ; who reported, " That the Ihip's 
 ** making more water than ufual, on her voyage 
 *' from London to Nevis, was occafioned by tome 
 negledts in calking: That fhe otherwile ap- 
 pears to be ftrong and found, and, when calk- 
 *' ed, fully fufficient to carry a cargo of fugar to 
 " London^ The fhip was calked, agreeable to 
 thefe diredions. In the evening of the day 
 on which he failed, the Captain found the fliip 
 had fprung a dangerous leak, and was obliged 
 
 to 

 
 I02 A VALID Insurance, how constituted. 
 
 to put back. On her being Hghtened, it appear- 
 ed that fhe had ftarted a plank ; and the plank 
 thus ftarted, difcovered that which could never 
 have been known previous to fuch an accident, 
 viz. that the iron-bolts by which the planks were 
 fajlened to the timbers, were entirely decayed and 
 eat out by riiji, and feveral of her planks ftarted, 
 one of them more than an inch from the timbers, 
 all the way fore and aft ; and in the report made 
 by the furveyors appointed by the judge of the 
 Vice-admiralty court in l^evis^ it was declared, 
 *' that the ftiip is in a bad condition, and entire- 
 <' ly unfit to proceed on her voyage, without 
 *' being firft thoroughly repaired ; and it is their 
 " opinion, that the ftiip cannot be thoroughly 
 *' repaired at that place, without more expence 
 *' than the value of the fliip and freight will a- 
 ** mount to.'* 
 
 The Court of Exchequer gave judgment for 
 the underwriter. A writ of error was afterwards 
 brought in the Court of Exchequer Chamber, 
 which was referred to Lord Mansfield and 
 Lord C. J. WiLMOT, who, after argument, like- 
 wife reported their opinions to be in favour of the 
 underwriter; and judgment was pronounced ac- 
 cordingly. See Park's Syjiem oflnfurances^p. 252., 
 where that author ftates this cafe at much greater 
 length, and obferves, that, although the report 
 in thefe cafes is ufually made in private, and the 
 reafons upon which it is founded are not pu- 
 blicly given, yet, from the full difclofure of cir- 
 
 cumftances.
 
 Mutual Error. 103 
 
 cumftances, it is impoffible to fuppofe the decifion 
 to have proceeded on any other principle than 
 that of feaworthinefs *. 
 
 The fame principle is illuftrated by the rea- 
 fonings in the following cafe, in which the jury 
 feem to have confidered the infufficiency as not 
 proved. 
 
 Arnoi^d v. Godin. 
 
 The Tyger, Captain Harrifon, being bound 
 from London to Gibraltar, the plaintiff got an 
 infiirance made on her, " intereft or no intereft, 
 *' free of average, and without benefit of falvage 
 *' to the infurers," and at the foot of the policy 
 there was a warranty, that the fhip Ihould de- 
 part with convoy from fome port in the Channel. 
 The faid (hip proceeded on her voyage as far as 
 the Downs, and failed from thence under con- 
 voy, as warranted ; but, foon after her departure, 
 l^e received a very confiderable damage, which 
 obliged her to return to Dover pier to refit ; and, 
 after the necelTary repairs were finifhed, Ihe fail- 
 ed again, in profecution of her voyage ; and for 
 her fecurity therein, to join the convoy at Spit- 
 head ; but having got as far as the Ifle of Wight, 
 fhe proved fo leaky, as obliged her to a fecond 
 return, and flie once more arrived at Dover, to 
 
 fearch 
 
 * This decifion was the fubjea: of much dlfcuffion, at the 
 time it was pronounced. Pamphlets even were publiflied on 
 the quellion. It is to be found at great length in We/ket's
 
 104 A VALID Insurance, how constituted. 
 
 fearch for leaks. Her owners, on this, thought 
 it advifable to have her furveyed by men of 
 Ikill and judgment ; and therefore, two fhip- 
 carpenters, and two mafters of Iliips, having exa- 
 mined her, declared, that they had furveyed both 
 fides from ftem to ftern above the wales, and the 
 tranfom, after the planks were ripped off, " and 
 ** found the timbers to be very rotten, and in fo 
 '' bad a condition, that except all her upper 
 '* works were pulled down and new-built, they 
 " did not judge her in a fit condition to proceed 
 "" on her intended voyage ; and that if fhe was 
 *' fo repaired, the charges would come to more 
 " than llie would be worth, with all belonging 
 " to her." The plaintiff infills, that (he was a 
 very good fliip, when fhe fet out on her voyage, 
 and llie was only rendered otherwife by the bad 
 weather Ihe had met with, which at iaft not only 
 made her unfit for her voyage, but occafioned 
 her proving a total lofs to her owners ; that ftie 
 would have weathered the florm in all probabi- 
 lity unhurt, had not the Swift privateer drove 
 foul of her •, that when her firil hurt was repair- 
 ed, the builder fuppofed her ftronger than be- 
 fore the ftorm. Mr Burton, who fitted her out 
 in the Thames, declared, fhe was in very good 
 condition, and fit for any voyage, though he did 
 not examine her, but only calked her, and 
 mended her outfide and floor-timbers ; but it is 
 natural to fuppofe, that if her timbers were found 
 in Odober (when thefe repairs were done) they 
 
 could
 
 Mutual Error. 105 
 
 could not have been rotten in January, when fhe 
 received her damage. And the defendant grounds 
 his reafons for not paying the faid infurance, 
 on that part of the policy's contents, which 
 afTerts the Ihip to be '' tight, ftaunch and ftrong," 
 and, barring future accidents, able to go through 
 the voyage ; whereas he fuppefes this velTel not to 
 have been fo, as he thinks it clear from the prece- 
 ding affidavit, and from the verbal evidence of 
 one of the furveyors ; to which he adds, in order to 
 make the proof of her defeds the Itronger, that, 
 on her firft fetting out, flie belonged to two Jews, 
 who, on her return to Dover pier the firft time, 
 fold her to Mr Richard Glover, a conliderable 
 merchant of this city, who ordered her to be re- 
 paired, and adiually laid out upon her L. 150, 
 which, as it appears, was in a manner thrown 
 away, as, on her fecond return, fhe was condemn- 
 ed, broke up, and fold in parcels ; and her inca- 
 pacity to proceed on her voyage having been fo 
 apparent, from the foregoing furvey, as to induce 
 Mr Glover to delire the fiiippers to take their 
 goods out; and though he had got L. 300 infu- 
 red on her, he feemed fo fenfible of the deceit- 
 ful bargain with the Jews, in felling him an 
 old rotten iliip, that he never demanded one 
 farthing of the faid infurance from the under- 
 writers. Verdi(!t for the plaintiff. Lex Merc* 
 Red. 281. At Guildhall Trin. 1747. 
 
 2. It might, perhaps, be fuppofed, that a ma- 
 terial error with regard to the fituation of the 
 
 O fliip,
 
 io6 A VALID Insurance, how constituted. 
 
 fhip, in refpea of the accidents of the voyage, 
 might likewife be fufficient to vacate a policy. 
 For example, it might be faid that an infurance 
 fhould be null, if the veiTel fhall appear to have 
 been loft or arrived, at the date of the policy. 
 There is here, it might be argued, a material er- 
 ror on one fide or other, which, if Gorreded, 
 would have totally prevented the contrad. 
 
 From an idea of this kind, it was long cuftom- 
 ary in Britain, to infert a claufe, " loft or not loft,'' 
 which feemed to imply, that, without fuch a fti- 
 pulation, the underwriter was underftood to be 
 only liable from the date of the policy ; and that 
 any previous lofs was not confidered as in the 
 view of parties. But a little refledion mull 
 fliQW that this idea is entirely without foun- 
 dation. For the infurer undertakes the rilk 
 from a port, or at arid from 9. port, both of which 
 imply, in the conftru6tion of merchants, certain 
 precife points of time, at which he underftands 
 the rilk to commence, totally unconnected with 
 the date of the contract ; in fome cafes they may 
 be prior, in others pofterior. As the infurer, 
 therefore, fixes upon a different period for the 
 commencement of rilk than the date of the po- 
 licy, he muft mean to undertake all rifks from 
 that period, whatever may be the ftate of mat- 
 ters at the date of his fubfcription. There i^ 
 here no error upon the part of the underwriter; 
 he exprefsly infures the veffel from the time of 
 its failing f'om, or arrival at a particular port ; 
 
 he
 
 Mutual Error. 107 
 
 he is aware, that it may be loll or arrived at the 
 date of the policy ; and he fubjecls himfelf to 
 that riik. 
 
 Notwithftanding the claufe, accordingly, '* lojl 
 *' or not lojl*'' it is believed the praEiice of Eng- 
 land was always confonant to the principles now 
 Hated. There was never a claufe, arrrced or not 
 arrived \ yet, if it appeared that the velTel had 
 been arrived at the date of the policy, it 
 never was difputed that the premium was due. 
 And the principle is now fo well afcertain- 
 ed, that the claufe, lojl or not lojl, is never in- 
 ferted in Scotch policies, though, from cuftom, 
 it continues in Englifh *. 
 
 More doubt may be entertained, in contra6ls 
 with regard to a future rilk, where there is no 
 fuch claufe as at and from in policies of in- 
 furance, to afcertain the precife time from which 
 the obligation of parties Ihall commence. A re- 
 markable decifion was lately given by Lord 
 Mansfield upon this point, in the following 
 cafe of a wager. 
 
 £flr/ March <:;. Pi GOT. 
 
 Mr Pigot and Mr Codrington agreed, (in the 
 Newmarket phrafe,) to ru?i their fathers againll 
 each other. Each of them wagered upon his 
 own father's furvivance. It appeared, that Mr 
 
 Pigofs 
 
 * See, upon this point, the cafe Court oqainjl Martineau, 
 quoted under the head of Mijlake occa/ioned by Fault, p. I. 
 ch, ii. \ z.
 
 ic8 A VALID Insurance, how constituted. 
 
 Pigofs father had died early on the morning of 
 that very day, on which, after dinner, the wager 
 was laid. Was this within the bet ? 
 
 It was argued for the affirmative, that this was 
 like an infurance, where nothing depends on 
 the date of the policy, but where there is a re- 
 trofped implied. And, if the poffibility of the 
 event which happened had occurred, it would 
 have been exprefsly included in the wager, making 
 no difference on the ri(k. 
 
 It was anfwered, that the claufe, lojl or ?iot, 
 is neceflary in our policies, before they can have 
 a retrofpedl ; and that no event is included in 
 the wager, which was not in the view of parties. 
 If a perfon lays upon a horfe which is dead at 
 the date of the wager, the bet will not hold. 
 
 The court, however, thought, that parties 
 would have included the paft, as well as the fu- 
 ture, had the cafe been thought of; and that they 
 meant merely a wager, '* which Jhould come jirjl 
 to his ejlate ;" and unanimoufly found for the 
 purfuer. 5. Burr, 2804. Trin. 11. Geo. III. 
 
 Although we entertain the higheit deference 
 for the refpedlable authority which pronounced 
 this decifion, we cannot help feeling fome doubt 
 with regard to it. The principle that holds 
 in cafes of infurance, evidently does not ap-- 
 ply here -, for there is no claufe, fuch as that 
 {at and from) in policies of infurance, to fix 
 the commencement of rifk, independent of 
 the date of the policy. It mult certainly ap- 
 pear
 
 Mutual Error. iO0 
 
 pear doubtful, how far a man is liable for the 
 rifk of adventures which he did not undertake, 
 but which he merely would have undertaken. If, 
 in any infurance, the period of commencement 
 Ihould be forgot to be fpecified, would it, in that 
 event, have any retrofpedl, previous to the date 
 of the contrad: ? Roccus ftates a cafe exact- 
 ly in point : *' The Senate," fays he, " determi- 
 " ned, that a wager, who JJjould be elected Pope, 
 '* was ineffe(5lual, becaufe, at the time of the 
 ^* wager, the Pope had been already chofen^ al- 
 ** though that was a circumflance of which the 
 " contracting parties were ignorant *.'* 
 
 3. It remains to be confidered, how far the 
 fame principle of error in contracts, will apply, 
 fo as to vacate a policy, when the miftake is not 
 fuch as, if correded in time, would have totally 
 put a Hop to the bargain, but merely fuch as 
 would have altered the premium. Suppofe there 
 fhould be fmaller peculiarities in the conftruc- 
 tion of a ihip, unknown to the owner ; or fup- 
 pofe that a merchant infures his returns, without 
 knowing the exact commodities he is to receive : 
 
 in 
 
 * Roccus, Not. 73. This diftin£tion between an infurance 
 and a common wager, has not efcaped Cafa-liegis. After 
 quoting certain commentators, who are of opinion, that in- 
 furance is not valid after a lofs has happened, he fays, " Hi 
 " dudtores intelligi debent loqui voluifle in contra6tu//!>c«/fon/j-, 
 '■'■ qui poll cafum fmiftrum faftus fuftineri, non poteft, <6V. 
 ** licet in hoc male difientiat Scaccia, &.c. ubi negat banc dif- 
 " fereutiam inter fpoafionem et aflecurationcm." Cafa-Re^is, 
 Difc. I. 5 13 — 24.
 
 no A VALID Insurance, how constituteu. 
 
 In thefe cafes, it fhould feem, where there is no 
 concealment, the policy Ihall not be vacated, be- 
 caule the fliip is a little ftronger or a little weak- 
 er ; that the cargo fliould be a little more or a 
 little lefs perifliable. The owner is fuppofed to 
 warrant the veffel and cargo to be of fuch a na- 
 ture, as will lay an ordinary degree of rifk on the 
 infurer ; but this admits of confiderable latitude : 
 Unlefs we confine the implied warranty to fuch 
 qualities as are ejfential to the contract, there is no 
 other accurate line at which we can flop *. 
 
 It may only farther be obferved, that there 
 are very few cafes which admit of confiderable 
 peculiarities of fhip or cargo, unknown to the 
 affured ; for the owner or freighter mufl be fup- 
 pofed to know, in general, the nature of his own 
 Ihip and cargo. And the want of information, 
 as to thefe particulars, is generally imputable to 
 direct fraud. 
 
 CHAP. III. 
 
 Of the right of parties to retraB from their en- 
 gagements^ in a Policy of Infurance, 
 
 SO much with regard to the form of this a- 
 greement, and the nature of that confent 
 which is requilite to its validity ; it remains to 
 take notice of a confiderable peculiarity which 
 
 occurs 
 
 * This fhews the pofition laid down by the foreign ordi- 
 nances, " That the infurer is not refponfible for the effedls of 
 " t\iQ perijhable nature of the fubjeft," not to be true in its 
 
 whole
 
 Right OF Parties TO RETRACT. ill 
 
 occurs in infurance ; That neither a formal 
 written deed, nor legal confent, is fufficient to 
 render the bargain complete. It is farther ne- 
 ceflary, that a performance Ihould have taken 
 place on either lide, in order to bind the other 
 party, and to prevent him from retrading. 
 
 In the Roman law we have examples of con- 
 tracts, which had a confiderable analogy with 
 that of infurance, where a particular /i/^wr^ P^Jr 
 ment or performance was promifed for a con- 
 lideration in hand. Thofe bargains, " do ut des," 
 and " do ut facias,'* were not completely fup- 
 ported by the judge. The fuUefl confent was 
 not fufficient to render them a ground of a6tion 
 at common law ; but if a partial performance 
 had been made on either fide, there was room 
 for a claim upon the contracT:, from' views of 
 equity. 
 
 Similar ideas appear to have been entertained 
 with regard to infurances. Each party mull make 
 fome performance, before the other be coni- 
 pietely bound ; and in this refped the principle 
 feems to have been carried farther than in the 
 Roman contrads above mentioned : For, in thofe 
 bargains, do ut des, and do ut facias, the perform- 
 ance of one party cftabliihed a valid obligation 
 on both : But, in infurance, the performance of 
 either does not prevent himfeJf from receding, 
 
 but 
 
 whole extent. Every latent defeEl arifes from the peiiJhaUe 
 nature of the fubjedtj and yet the underwriter muft be liable 
 for latent defe£is, unlefs they are fo great, as lliat, if dif- 
 covered in time, they would have totally prevented the cou- 
 tra6l.
 
 112 A VALID Insurance, how constituted. 
 
 but only the other party, to whom the performance 
 
 was made. 
 
 Thus, in order to render the contrad com- 
 plete, fo as not to admit of repentance on the 
 part of the underwriter, the older regulations 
 agree it is neceflary the premium fhould be paid 
 to him by advance*. 
 
 And by the more modern notions on this fub- 
 jecl, the underwriter^ though he may not adlual- 
 ly receive the premium, muft acknowledge the 
 receipt of it in the contrad f . 
 
 This practice muft undoubtedly have origin- 
 ated from an idea that the contract was not com- 
 plete, nor binding upon the underwriter, unlefs 
 there had been a rei interventus, a performance 
 by the otlier party to him. 
 
 On the other hand, the infurer undertakes a 
 rijk. Before the voyage is commenced, while 
 the riJk is yet entire^ the underwriter cannot be 
 conlidered as having performed any part of his 
 bargain ; and while this is the cafe, it is univer- 
 fally agreed that the alTured has it in his power 
 to recede, by breaking up the voyage, or aban-r 
 doning the adventure. While no rilk has been 
 run by the infurer, matters are entire as to him ; 
 and the alTured may retrad, and recover the pre- 
 mium. In order to render the contra6t com- 
 plete, it is necellary the adventure infured lliould 
 
 have 
 
 * Rocctis de ajfec. 83. Confolato del Mare of Barcelona* 
 Ord. Copenh. 
 
 f Ord. France^ No. 668. Ord. Koningjb, No, 775. Prac- 
 fict of Britain j of Hamburgh ^ &c.
 
 Right of Parties to retract. 113 
 
 have commenced, and the underwriter have run 
 fome part of the rifk ; the commencement of rijk 
 conftitutes a performance on the part of the un- 
 derwriter. 
 
 Thofe contracts among the Romans, which 
 had no particular ?iamey and which, by lawyers, 
 are faid to be comprehended' under the words, 
 do ut des, and do ut facias, occurred but feldom 
 in fociety ; and this was the reafon why judges 
 did not think it worth while to fupport them, 
 unlefs they were accompanied by a rei interven- 
 tus. The fame reafoning was, at an early period, 
 applicable to infurance, then a rare and un- 
 ufual contract ; and this was no doubt the 
 original fource of the peculiarity now mentioned. 
 
 But, with refpe£t to one of the parties, there 
 occurs an additional reafon why he fliould have 
 the liberty of retracing, fo long as, with refped 
 to him, matters remain entire. If two perfons 
 make a bargain, the performance of which, 
 from a change of circumftances, becomes infinite- 
 ly more hurtful to the one than beneficial to the 
 other, it would be hard that the latter Ihould in- 
 fift upon fpecific performance. It is enough, in 
 that cafe, if the party who mud be the greatell 
 fuflferer by performance, fliould indemnify the 
 other for his pojttive lofs, or, at molt, allow him a 
 confideration for the profit he might have reaped, 
 for his lucrum cejfans, as far as that is capable of 
 being afcertained. 
 
 In an infurance, the lofs incurred by the af- 
 i"ured, in profecuting the adventure infurcd, 
 
 P might.
 
 114 A VALID Insurance, how constituted. 
 
 might, in many cafes, infinitely exceed the ad- 
 vantage reaped by the underwriter. While mat- 
 ters are entire, therefore, it appears equitable, 
 that the affiired ihould have it in his power to 
 recede from his agreement, by breaking up the 
 adventure ; and that the underwriter fhould be 
 fatisfied with receiving the damage and interefi. 
 
 It does not, however, appear poffible to afcer- 
 tain the probable gain which the infurer might 
 have acquired by the fubfiftence of the policy. 
 It is uncertain whether he might have reaped 
 gain or incurred lofs. No confideration has been 
 thought due, therefore, in refpecl of his lucrum 
 cejfans. And, with regard to damage^ he incurs 
 none by the breach of the policy, as he has run 
 no rifk, farther than what may be thought to 
 proceed from the trouble of keeping an account 
 of the tranfadlion. 
 
 From this laft confideration, he is, upon the 
 retracling of the aflTured, allowed to retain a cer- 
 tain fmall proportion of the premium. This fum 
 differs a little, in different countries. In Am- 
 ilerdam, it is one per cent. ; in Britain, and moll 
 other commercial fcates, it is one-half per cent, of 
 the fum infured. 
 
 From this peculiarity of the contrad of in- 
 furance, that it is incomplete until a perform- 
 ance has taken place on both fides, a variety of 
 curious queftions arife, which Ihall be the fubje6t 
 of particular difcuffion hereafter. 
 
 E L E-»
 
 ELEMENTS 
 
 O F 
 
 INSURANCE. 
 
 PART II. 
 
 Of the Nature of an Infura?ice-co?itra6i, and the 
 Obligations a?-ifitig from it. 
 
 INSURANCE was formerly explained to be 
 a contradl, by which one man, for a con- 
 fideratioii received, becomes liable for the lofs 
 arifing to another, from any fpecified contin- 
 gency. 
 
 The one party, it was obferved, the infurer, 
 is fuppofed to receive the premium in hand, at 
 the date of the policy ; for which he promifes 
 to indemnify the affured, in cafe the latter fliali 
 fuftain damage from fome future event. 
 
 The performance requifite upon the part of 
 the affured is therefore at an end, previous to the 
 execution of the agreement, by his payment, 
 real or fuppofed, of the premium. It is the un- 
 derwriter
 
 ii6 Nature of an Insurance Contract. 
 
 derwriter who is laid under future obligatiofi hy 
 the policy; and that deed is accordingly fub- 
 fcribed by him alone. 
 
 The infurer undertakes a rijk ; he comes un- 
 der an obligation, in favour of the affured, to a 
 certain amount, upon the exiftence of a fpecified 
 event. It here,- therefore, occurs to confider 
 three points : 
 
 ly?, The duration of the infurer's rilk : 
 
 id. The nature of his rifk ; or, in other words, 
 the nature of the event againll which provifion 
 is made, by infurance : 
 
 3^, The extent of the infurer's obligation, or 
 the amount to which he is liable, when the event 
 happens. 
 
 CHAP. I. 
 
 Of the Duration of the Infurer'' s Rifk, 
 
 THE duration of the rifk undertaken by an 
 infurer, is a matter that requires to be fix- 
 ed by exprefs agreement in every particular cafe, 
 and muft become an efTential claufe in every po- 
 licy. The expreffions which are commonly ufed 
 for this purpofe, have acquired a precife mean- 
 ing by the ufage of merchants. 
 
 The obfervations that occur upon this part of 
 the i\vj:^&., confift principally of mere matter of 
 facl V. ■ : h relation to the pradtice of different 
 mercantile nations. In order to flate the varia- 
 tions
 
 Commencement of Risk, 117 
 
 tions in this refped: with more diftindnefs, it may 
 be proper to conlicler leparately, i/?, The com^ 
 mencement of rifk ; and, idly^ Its termination. 
 
 Sect. I. Of the Commencement of Ri/k. 
 
 Infurance is generally made in two ways, 
 ^'' from a port, ^"^ or '* at mid from.*' It is likewifc 
 on Jbip, or cargo, ox freight. 
 
 I nfura nee// W7Z a port, whether on fliip or goods, 
 is, by the pradice of England, underflood to 
 mean, '* from the time the velTel breaks ground, 
 *' in failing from that port," 
 
 At and from, when applied to a JJjip, includes 
 the period of her (lay in that port, from the 
 time of her arrival there *. 
 
 At and from, when applied to goods, means, 
 from the time thofe goods are put aboard the 
 vefTel. 
 
 Thus it is obferved, that " if a fliip be infured 
 
 ''* from the port of London to Cadiz, and, before 
 
 " fhc breaks ground, takes fire and is burnt, the 
 
 *' infurers on fuch fliip fliall not anfwer ; for 
 
 *' the adventure began not till the lliip was gone 
 
 " from the port of London. But if the words 
 
 *' had been at and from the port of London, they 
 
 " would have been made liable. If fuch an in- 
 
 ** furance be made from London to Cadiz, and 
 
 '* the fhip had broke ground, and afterwards 
 
 " been 
 
 * See the cafe, Motteux v. L. /IJf. Co. quoted under the 
 head of Mutual Error ^ P. i. ch. 2. § 3.
 
 ii8 Nature of an Insurance Contract. 
 
 <* been driven by ftonn to the port of London, 
 '' and there had taken fire, the infurers mull 
 " have anfwered ; for the breaking ground was 
 *< an inception of the voyage *." 
 
 The rifle on freight, or upon that profit which 
 the fhip ihall gain by the carriage of goods from 
 one port to another, mufl; likewife commence 
 from the time thofe goods are fiiipped. 
 
 Tongue v. Watts. 
 
 The plaintiff' infured ** on fhip ^nd freight, at 
 ^^ and from Jamaica to BrifloW'' A cargo w^as 
 ready to be put on board ; but while the fhip 
 was careening, in order to the voyage, a fudden 
 tempeft arofe, and fhe and many others were lofl. 
 The rigging and parts of her were recovered and 
 fold ; and the defendant paid into court, as much 
 as, upon an average, he was liable to for the 
 lofs of thcjhip. The plaintiff farther infilled to 
 be allowed L. 600 for the freight the Ihip would 
 have earned in her voyage, if the accident had 
 not happened ; but as the goods were not 
 aclually on board, fo as to make the infurer's 
 right to freight commence, the Chief Juftice 
 held he could not be allowed it. i^th Geo. II. 
 Strange, 1251. 
 
 The rules now mentioned with regard to 
 the commencement of rifk, are very generally 
 adopted, and, indeed, w^ith few or no variations, 
 in the different countries of Europe. At Am- 
 
 fterdam 
 
 * Molloy, /. 2. ch. 7. §9.
 
 Termination OF Risk. 119 
 
 flerdam and Stockholm, however, the rifk on 
 fhip commences ** from the time llie begins 
 « to take aboard her ballaft for the voyage." 
 At Bilboa, the hour of commencement muft be 
 exprefled in the policy. 
 
 At the fame time, there may occur fome va- 
 riations, ariling from the nature of different ad- 
 ventures. 
 
 A fhip being infured from the Greenland feas, 
 or Davis' flraits, the rifk homeward commen- 
 ces from the time the fifhing ends *. 
 
 It is determined by the ordinances of Stock- 
 holm, that " where the infurance for the out- 
 " ward bound voyage of a fhip, and that for its 
 " return, are underwritten by two different per- 
 *' fons, the rifk and obligation of the latter com- 
 " mences from the day and hour when the 
 <' matter begins to take in hallafi or goods'' 
 
 Sect. II. Of the Termination of Ri/k. 
 
 The period at which the rifk of the infurer 
 is underflood to terminate, both in relation to 
 fliip and goods, admits of confiderable variety, 
 by the practice of different nations. As to the 
 infurance on freight, there are fome cafes in 
 which freights are due the moment the fliip fails ; 
 
 thefe 
 
 * " Turba 18 mercatorum Amflerd. affirmabat reditum 
 *' incipere poftquam finita erat pifcatio, et de ea fatis inter 
 " partes convenicbat." Bynkerfch. !^a-Jl. Jur. priv. I. 14-
 
 120 Nature of an Insurance Contract. 
 
 thefe are not proper objeds of infurance. But, 
 in general, the infurance on freight muft termi- 
 nate when the fhip is underflood to have earned 
 her freight ; that is, when difcharged of her car- 
 go. — And, jirft, as to the termination of rifk upon 
 filp. 
 
 By the pradice of Britain, the rifk on Ihip 
 ends, when fhe has been 24 hours moored in har- 
 bour, in good fafetj. The fame is the rule at 
 Bilboa. 
 
 It is to be underflood, however, that by the 
 velTel being moored, is meant, her being moored 
 in fuch a fituation as that Ihe can deliver her 
 cargo. 
 
 Waples v. Eames. 
 
 The fliip Succefs was infured, " at and from 
 " Leghorn to the port of London, and till 
 *' there moored 24 hours in goodfafety.'''' She ar- 
 rived the 8th July, at Frefh Wharf, and moored, 
 but was the fame day ferved w4th an order to go 
 back to the Hope, to perform a fourteen days 
 quarantine. The men upon this deferted her ; 
 and upon the 12th, the Captain applied to be 
 excufed going back, which petition was adjourn- 
 ed to the 28th5 when the Regency ordered her 
 back ; and on the 30th fhe went back, perform- 
 ed the quarantine, and then fent up for orders 
 to air the goods : But before fhe returned, the 
 fliip was burnt on the 30th of Auguft. — Queftion, 
 Whether the infurer was liable ? 
 
 For
 
 Termination of Risk. i2i 
 
 For the defendant it was infiftcd, that the fliip 
 arriving and being moored on the 3d July, and 
 remaining fo till the 3Cth, here was a perform- 
 ance of what he had undertaken ; and his rifk 
 ought not to be extended to fo long a time as 
 the 8th July, and the burning on the 23d of Au- 
 guft. But it was ruled, that though the fhip 
 was fo long at her moorings, yet fhe could not 
 be faid to be there in good fafety, which muft 
 mean the opportunity of unloading and difcharg- 
 ing; whereas, here fhe was arrefted within the 24 
 hours ; and the hands having deferted, and the 
 Regency taking time to confider the petition, there 
 was no default in the mafter or owners : And it 
 was proved, that, till the 14 days were expired, 
 there could be no application to air the goods ; 
 
 wherefore the jury found for the plaintiff. 
 
 Strange' s Reports ^ 1243. 19. Geo. II. 
 
 In order to a vefTePs being moored in goodfafe- 
 ty^ no more appears neceffary than that fhe 
 fhould be lying in fuch a fituation as is proper 
 for delivering her cargo, according to the cuftom 
 of the port. 
 
 In two feparate infurances on the fliip Ceres, 
 " from Clvde to a market in the Weft Indies, 
 " and with hberty to proceed to Jamaica." The 
 veflel having difpcfed of the greateft part of her 
 cargo in the Weft Indies, proceeded to Morant- 
 bay in Jamaica, and was there lying at anchor 
 for fevcral days, and had landed a fmall part ot 
 her cargo, before ftie was loft in a hurricane. 
 
 Q^ Among
 
 122 Nature of an Insurance Contract. 
 
 Among a great many queflions that occurred in 
 this cafe, before the Court of Seffion, it was 
 maintained by the aflured, that the veflel, al- 
 though fhe had been lying at anchor for feveral 
 days, had not been moored to a wharf or quay ; 
 but had been lying merely in an open road. It 
 was anfwered, That this was according to the 
 cuftom of the port, and that the veflel both 
 could have delivered her cargo, and did deliver a 
 part of it in that fituation. The Court of Sef- 
 lion paid no regard to the objection. In 1786. 
 Marjhall^ Hamilton and Co. againjl Crawford, 
 Barns, and others. 
 
 So much with regard to the pradlice of Britain. 
 In many places, however, at Hamburgh for ex- 
 ample, the rilk continues till the Ihip is difcharg- 
 ed ; and in others^ as at Copenhagen, it continues 
 for a certain number of days, unlefs the veflel be 
 difcharged fooner ^. 
 
 Secondly^ As to the termination of rilk on goods. 
 At London it terminates *' when the goods are 
 difcharged and fafely landed ^^ at the port of de- 
 livery fpecified in the policy. 
 
 There is a great variety, however, in this par- 
 ticular, in the practice of different ftates. The 
 ordinances of Antwerp, Amfterdam, and Stock- 
 holm, fix fifteen days after the arrival ; that of 
 Rotterdam, fourteen; that of Coningfljerg, y/jc, 
 ten, QY fourteen, according to the fize of the Ihip. 
 And the policies of many countries fix a cer- 
 tain 
 * Magens, vol. i, 47, 48.
 
 Termination of Risk. 123 
 
 tain time, " unlefs the fhip Ihall be delivered 
 *' fooner." 
 
 It may here be queftioned, whether the infurer 
 is liable until the goods are delivered upon land, 
 or only until they be removed by the proprietor 
 out of the fliip. 
 
 By the ordinances, as well as the expreffion of 
 policies, in moll foreign nations, the infurer is 
 underftood to bear the rilk of all carriage in 
 lighters or boats, both in loading and unload- 
 ing*. 
 
 Britifh policies differ here from all foreign 
 ones, and make ufe of the following claufe : 
 ** Beginning the adventure fro?/i the loading 
 *' thereof aboard the faid fliip, until the fame 
 " fhall arrive at and there he fafely laiided.^'* 
 
 In confequence of the expreffion of this claufe, 
 Uthough goods are not at the infurer's rifk while 
 in boats and lighters carrying aboard, yet, what 
 appears a little inconiiftent, they feem to be at 
 his rifk while carrying ajhore. And Magens 
 mentions a cafe, in which Sir John Strange 
 and Mr Hume Campbell delivered an opinion 
 to this purpofe. 
 
 Perhaps an idea may be adopted, that will be 
 ef more extenlive application : That the termi- 
 nation of the infurance does not depend merely 
 upon the circumftance of the goods being landed 
 
 or 
 
 * Ord. of Antwerp, of Amfterdam, of Rotterdam, of 
 Spain, of rVance, of Coningfberg, of Hamburgh, of Stock., 
 holm, of Copenhagen. See Magens, i. 45.
 
 124 Nature of an Insurance Contract. 
 
 or not ; but upon their being put, whether at fea 
 or on ihore, into the cuilody of the perfon to 
 whom they are coniigncd. 
 
 Sparrow v. Carruthers. 
 
 The defendant infured goods " to London^ 
 ** and until the fame fhall be fafely landed there." 
 The fhip arrived in the port of London^ and the 
 owner of the goods fent his lighter and received 
 the goods out of the fhip ; but before they 
 reached land, an accident happened, whereby 
 »;hey were damaged, for which this action was 
 brought againil the infurer. 
 
 For the defendant it was infilled, that, as 
 the accident had happened after the owner had 
 taken the goods into his own poiTeffion, it was 
 a lofs after the infurance was ended. To which 
 it was anfwered, that if this had been an action 
 againft the mafter or owners of the fhip, it might 
 have been a good anfwer, for they were cer- 
 tainly difcharged ; but in this action it could be 
 no anfwer: For, during all the voyage, it might 
 be faid the goods were in the pofTeflion of the 
 affured, who took the fhip to freight, and whofe 
 fervant the mafter v/as, to this purpofe, as much 
 as the lighterman : And thefe words are put 
 into policies, to guard againft all lofs, till there 
 is an actual landing ; becaufe, in the cafe of 
 fhips of great burden, that are forced to lie off, 
 there may be carriage for many miles in boats 
 
 or
 
 Termination of Risk. 125 
 
 or lighters ; and it was in the cojirfe of trade for 
 the owner of the goods to fend his lighter. 
 
 But the Chief Jujlice held that the infurer was 
 difcharged. He faid, it ^vould have been other- 
 wife, had the goods been fent by t\\e.Jhip''s boat, 
 which is confidered as a part of the fhip and 
 voyage ; and the jury, (which was of merchants,) 
 exprelling they thought it turned upon that dif- 
 tindion, brought in a verdict as to this point 
 againfl the plaintitF. Strangers Reports^ 1236, 
 1 2. Geo. II. 
 
 Hitherto we have confidered the ufual termi- 
 nation of riik on (hip and goods ; but there are 
 many cafes, where the nature of the voyage or 
 cargo may produce a variation from the general 
 rule. 
 
 Thus, infurance on privateers is generally done 
 for an exact period from the date of the infu- 
 rance, as for a certain number of weeks or 
 months. The fame rule, it is obvious, mull be 
 obferved in infurancesyro;;/ Jirey and on lives. 
 
 A limilar variation takes place where the cargo 
 is fold on board, in which cafe it need not be 
 landed at all to free the infurer. Of this the 
 following examples are given by Molloy : 
 
 " A merchant infures his goods from London to 
 *' Sallee, and there to he landed. The fador, 
 ** after arrival, having opportunity, fells the 
 " cargo aboard the fame Ihip, without ever un- 
 " lading her j and the buyer agrees for the 
 
 " freight
 
 126 Nature of an Insurance Contract. 
 
 ** freight of thofe goods for the port of Venice ; 
 ** before fhe breaks ground the fhip takes fire. 
 ♦* The affured and buyer are abfolutely without 
 *' remedy ; for the property of the goods be- 
 ♦* coming changed, and freight being contraded 
 ^' de novo, the fame was as much as if the goods 
 *' had been landed. And fo it is, if the fador, 
 " after her arrival, had contraded for freight 
 *' to another port, and the fhip had happened to 
 ♦* take fire, the aflurers are hereby abfolutely dif- 
 *' charged for ever *." 
 
 " It has been adjudged, that on voyages to the 
 '' coaft of Africa, the Miffifippi, and fueh other 
 *^ places, where the fhips go to trade, and difpofe 
 " of their cargoes by barter, and the like, and 
 ** not to land and deliver them to confignees and 
 *' fadors, the rilk on the goods outwards ends 
 " on breaking bulk." Wejket^p, ii. 
 
 The following is another inftance of variety 
 in this refpedl, arifing from the nature of the 
 adventure. 
 
 The Perfcverance, Captain Hope^ was, in 
 March 1775, iniured in the ufuai manner " at 
 and from Liverpool to the Greenland feas, during 
 her fifliing there, and back to LiverpooV^ Meet- 
 ing with damage in thofe feas, flie returned to 
 Liverpool fooner than fhe otherwife might have 
 done, and being repaired, was fent a fecond 
 time the fame fcafon to the fifhery. The fame 
 
 underwriters 
 
 * Molloy, I. ii, c. 7. § 13. Locen. I, ii. c. 5. \ 9. See alfo 
 Malynes Lex Merc* Ii2.
 
 Termination of Risk, 127 
 
 underwriters aflured her again, and it was agreed 
 to refer to the decilion of arbitrators, Whe- 
 ther the firft policy included the whole rifk, (the 
 fhip having come back by neceffity to repair,) 
 and confequently, whether a return of premium 
 fhould be made on the fecond policy ? or, whe- 
 ther the infurers fhould keep both premiums, and 
 the two voyages be conlidered as dillind: r 
 
 The cafe being fubmitted to arbitrators, it was 
 urged for the infurers, That infurance on a 
 Greenland fhip was fuppofed to have a refpedt to 
 the Stat. II. Geo. III. c. 38. requiring her to ftay 
 in the Greenland feas till the loth Augufl, unlefs 
 Ihe departs with the blubbers and fins of one 
 whale, or unlefs flie fhall be forced by neceffity 
 to leave them fooner. That the Perfeverance 
 having caught fome fifh, and being obliged to 
 return by neceffity, had been found entitled to 
 the bounty. That the fame rule which ended 
 the voyage as to government, ought to regulate 
 it as to the infurance ; for otherwife the infurers 
 might be made liable, on pretence of returning 
 to repair, for innumerable voyages, and for an 
 indefinite time. That therefore a fhip's returning, 
 and being entitled to the bounty, ought to ter- 
 minate the rifk of the infurers. The arbiters 
 determined in conformity with this opinion*. 
 
 In voyages to Newfoundland and Labrador, 
 it is cuflomary to carry on the fifhing all the time 
 the outward cargo is unloading. Confequently, 
 
 an 
 
 * See Wejket, 264. where the cafe is flated at great length.
 
 128 Nature of an Insurance Contract. 
 
 an infurance on cargo outward, with the ordinary 
 claufe " until fafely landed," is underftood to 
 continue till the goods are entirely landed, not- 
 withftanding the delay that takes place upon the 
 part of the affured in this particular. See Dou- 
 glas' Reports, Cafe of Noble 'v. Kennoway. 
 
 Thefe diiferences in the nature of the voyage 
 often occafion a variety of claufes in the policy 
 with refped to the termination of the rifk. 
 
 One of the moft remarkable of thefe claufes 
 occurs in the cafe of infurance to a market, or to 
 ports of difcharge. In confequence of fuch a 
 claufe, the infurer's rilk muft be fuppofed to 
 continue, not only until a market is found for 
 the goods, and the veffel there fafely moored, 
 but till the cargo is difpofed of. 
 
 Cafe, If the policy of infurance run, '* until 
 ** the fliip fhall have ended, and be difcharged 
 ** of her voyage," arrival at the port to which 
 fhe is bound, is not a difcharge until fhe be un- 
 loaded. Per tot curiam on a demurrer, Skin- 
 ner, 243. Mich. i.Jac. 11. B. R. anon. 
 
 CHAP.
 
 Nature of the Insurer's Risk. 129 
 
 CHAP. II. 
 
 Of the Jiature of the Infurer's Kifky or of the event 
 againjl whkb provijion is ?ncide by the Policy *• 
 
 THE claule in a maritime policy, fpecifying 
 the rilks undertaken by the infurer, is as 
 follows : 
 
 " As to the perils which the affurers are con- 
 " tented to bear in the courfe of this adventure, 
 *' they are, of the feas, men of war, fire, enemies, 
 " pirates, rovers, thieves, jetfons, letters of mark 
 " and reprifal, furprilals, takings at fea, arrefts, 
 " reftraints and detainments of all kings, princes, 
 " or people, barratry of the mailer and mariners, 
 *' and all other loffes, perils, and misfortunes, 
 *' which have or fhall come to the hurt, detri- 
 '* ment, or damage of the faid fliip, &c. or any 
 " part thereof f". 
 
 R I. From 
 
 * In confidering the nature of the infurer^ s riji, there are 
 two points which deferve attention ; — the nature of the 
 event provided againft j and the degree of connecftion be- 
 tween the extent and the lofs. Theie cannot eafily be treat- 
 ed of feparately. 
 
 •j- In a policy on lives, or from fire, it is not ufual to in- 
 ftrt an J' fuch enumeration ; and the nature of the cafe fcarce- 
 ly admits of it. Thefe policies, however, as well as mer- 
 cantile infurance, often contain a variety of exceptions 
 from, and limitations upon the rifk, fuited to the circum- 
 ftances of different cafes, as will be mentioned more parti- 
 cularly in another place.
 
 130 Nature of an Insurance Contract. 
 
 I. From the enumeration here given, and from 
 the nature of the contrad of infurance in gene- 
 ral, it feems to follow, that the infurer means to 
 fubjedl himfelf to the confequence of all perilous 
 accident, or unforefeen misfortune, which may 
 happen to the fubjedt in the courfe of the adven- 
 ture *. 
 
 It is for accident that he is liable, and for ac- 
 cident only ; that is, fuch unfortunate events, 
 the amount of which cannot be forefeen, but de- 
 pend upon the iiTufe of the voyage. Were it 
 otherwife, the contract would not be an *' agree- 
 *' ment for indemnity on an uncertain event,^ 
 which is underflood by an infurance ; but it 
 would be for a determinate and afcertained per- 
 formance. 
 
 The nature of infurance fuppofes a ri/k under- 
 taken, and not an afcertained performance ; be- 
 caufe the intention of the merchant is to fecure 
 himfelf from a lofs, the amount of which cannot 
 be calculated, and which therefore might be 
 ruinous to him. 
 
 1. Hence it has become an eftablifhed rule, 
 that an underwriter is not liable for dam.age 
 arifing from the natural decay, or the perijhable 
 nature o£ the fubjed infured. Thefe are not ac- 
 cidents. They either are forefeen, or they may 
 have been forefeen ; and their amount may be 
 exactly afcertained. They depend not upon the 
 ilTue of the voyage, but arife from a pre-exifting 
 
 caufe, 
 
 * 2 Val. Com. 12. 14. 74. 79.
 
 It extends to Accident only. 131 
 
 caufe, totally unconnedled with it. A bargain, 
 by which a man fhoald fubjecl himlelf to lofs 
 ariling from thefe fources, would not contain 
 that rilk or hazard, which appears eflential to 
 the contract of infurance. 
 
 The French Ordinance fays, " that the lofs, 
 *' diminution, or wafte, that may happen from 
 ** the perifhable quality of any thing, fhall not 
 " fall on the infurers*." 
 
 " " In grain, wine, fait, figs, raifins, oranges, 
 " diftilled liquors, herrings, olives, and other 
 ** vivers," fays the Guidon, " becaufe it happens 
 " fometimes, that they are fpoiled in the un- 
 *' loading, or, while in the Ihip, are fubjedl to be 
 ** heated, turn four, become wet, putrefy, leak, 
 " or damage one another, the infurer is in no 
 " degree liable for fuch partial lolTes f ." 
 
 Upon this principle, an infurer is not liable 
 for the natural tear and wear of the lliip, or her 
 furniture ; nor for the ordinary wafte and cor- 
 ruption incident to the cargo. Thefe are particu- 
 lars, the amount of which does not depend at all 
 upon the event of the voyage, and which admit 
 of calculation, as well before as after the adventure. 
 A bargain may no doubt be made, with a view 
 to provide againfl fuch damage; but the bar- 
 gain would change its nature. If a perfon makes 
 an agreement, by which his life is warranted 
 for ten or twenty years, it is an infurance. But 
 
 if 
 
 ♦ Mag. vol. ii. 173. f Guidon, ch. v. §8.
 
 132 Nature of an Insurance Contract. 
 
 if for 200 or 300, it becomes, from the certainty 
 of the event, a different contrad. 
 
 Upon the fame principle, that the infurer is 
 not anfwerable for the ordinary tear and wear 
 of the Ihip, neither is he refponfible for the ordi- 
 nary wafte and deterioration of commodities, 
 nor that leakage of liquors, which was to be ex- 
 pelled, and unavoidable. 
 
 It is faid, " If the party infured can prove, 
 
 *' that the prejudice or leakage was occafioned by 
 
 <' unfortunate accidents, as had weather, arrejl, 
 
 *' or the like, the infurer mult bear thefe loffes." 
 
 ' Ord. of Koningjherg, 
 
 It is obfenved by Mr Wejket^ who, in a matter 
 of practice, is certainly of great authority, ** that 
 *' in England there is feldom any particular fti- 
 ** pulation in the policy with regard to leakage. 
 *' It is underftood, the infurers are liable for fuch 
 " lofs as happens from Itorms and other un- 
 ** avoidable accidetits, de dueling the ordinary or 
 *^* common leakage *." 
 
 By the ordinances of Hamhirgh, '* when pe- 
 ** rifliable commodities fpoil, or receive damage 
 " of themfelves, by reafon of their natural quality; 
 *' as, for example, when wines turn four, or leak 
 " out ; Seville or China oranges, lemons, apples, 
 *' &c. perifh ; phefnuts and corn are heated; and 
 " fo forth ; as likewife, when rats and mice eat 
 " and deftroy any thing. In all fuch cafes, the 
 ^' afiurer is not liable to make good the damage, 
 
 but 
 
 f Voce, (^Leakage.)
 
 It extends not to Wear and Tear. 133 
 
 " but the fame remains to account of every one 
 «* to whom the goods belong ; unlefsfuch damage 
 " arofe from hence, that the (hip was prevented 
 ** from purfuing its way, by reafon of reftraints, 
 *' ^c. by external violence, &c.^^ Thofe lofTes, 
 it feems, above enumerated, are conlidered as 
 confequences of the perifliable nature of the fub- 
 
 On the fame footing are the provifions and 
 ftores on board a veflel, which are intended to 
 be confumed, and ought not to be accounted for 
 by the infurer, fo far as they are applied to the 
 purpofe expedted ; their confumption being fo 
 far imputable to delign, and not to unforefeen 
 accident. 
 
 Thus by the ordinances of Rotterdam and 
 Middlebiirgh, *' nothing that ferves for the ordi- 
 " nary confumption of the voyage can be infu- 
 " red.'* By thofe of Koningjberg and Amjlerdam^ 
 they may ; but it muft be *' along with thejhip, 
 and not alone ^ or feparately,'''' The infurer like- 
 wife, by thefe lail mentioned regulations, is not 
 liable for fuch ordinary confumption, if the ad- 
 njenture arrives ; becaufe, in that cafe, thefe ex- 
 pences are calculated on, fo as to be refunded 
 with profit ; he is liable for them, however, if 
 the adventure is lojl. This feems rather to be a 
 variation from general maxims, as the lofs arifmg 
 from the ordinary confumption of provilions and 
 ftores, admits of previous calculation. 
 
 In 
 
 * To the fame efiecfl, fee Qrd. of Fiance, S/ypman, ad Jus 
 Marit. par. iv. c. ']. p, 320,
 
 134 Nature of an Insurance Contract. 
 
 In confequence of this principle, that infu- 
 ranee proteds againft accidents only, various re- 
 gulations have been adopted in different coun- 
 tries, to prevent the infurer from being fubjeded 
 to that damage which arifes from tear and wear, 
 or natural decay. 
 
 By the ordinance of Amfterdam, it is provided, 
 " That whereas lliips often fail in good condi- 
 " tion, and are infured as fuch ; but in the 
 " courfe of long voyages are much deteriorated, 
 " and the infurers are caft to pay the original 
 " value; although thefe fliips, if they had made 
 ** a fafe voyage, w^ould not have fold for one 
 " third ; therefore it is left to the Commiffioners 
 " of Infurance to determine, in fuch cafes, ac- 
 ** cording to their difcretion." 
 
 There is a contrivance, (probably adopted 
 principally with a different view), which pre- 
 vails in many countries, that may operate in 
 favour of the infurer, in the refped now men- 
 tioned. This is to prohibit the owner from in- 
 furing the full value of his adventure. The 
 principal objed of fuch a prohibition was, no 
 doubt, to prevent fraudulent loffes ; at the fame 
 time, it obliges the alfured to bear a fhare of lofs, 
 which may correfpond, in fome degree, to the 
 fuppofed natural and expeded deterioration of 
 the fhip and cargo. 
 
 Thefe limitations, it mufl be obferved, with 
 regard to the extent to which infurance may be 
 made, cannot be effedual for the purpofe allud- 
 ed
 
 It extends not to Wear and Tear. 135 
 
 ed to, unlefs over-valuations are checked by an 
 examination of the veflel, previous to the voyage. 
 This meafure has been adopted in France, where, 
 in purfuance of an edict, 17th of Auguft 1779, 
 all fhips are prohibited to fail, until a furvey has 
 been made. And it is believed the merchants 
 of London have of late adopted the meafure of a 
 regifter, for a fimilar purpofe, though not under 
 public authority *. 
 
 It was, for a long time, the pradice in Britain, 
 that the infurer was conlidered as entitled to a 
 retention of 2 per cent, on every, lofs incurred ; a 
 practice which feems to have originated from an 
 idea of the propriety of an abatement, in con- 
 fideration of natural decay of fhip and cargo. 
 This pradice, however, has of late been going 
 gradually into defuetude, and, it is believed, is 
 now become rather uncommon both in England 
 and Scotland. 
 
 Upon the principles above ftated, therefore, it 
 feems to follow, that no lofs and damage which 
 can be forefeen and eftimated, no natural and 
 expeded deterioration falls under the rilk un- 
 dertaken by the infurer. On the other hand, 
 whatever does not admit of previous afcertain- 
 ment, the damage of a ftorm at fea, the peril of 
 capture, of depredation by thieves or pirates, 
 forms the proper objed of an infurance-contradt. 
 The general danger of thefe may, no doubt, be 
 
 forefeen ; 
 
 * This is llkewife the cafe at Leith, but it is believed has 
 not been fully adopted on the weft coaft of Scotland.
 
 136 Nature of an Insurance Contract. 
 
 forefeen ; but the precife amount of lofs can only 
 be eftimated from the event*. 
 
 3. From the account that has been given of 
 the perils undertaken by the infurer, it is obvi- 
 ous, they do not include thofe misfortunes which 
 arife from the fault or voluntary deed of the 
 other party. 
 
 The fault or deed of a party, it may be ob- 
 
 ferved, is not accident. It might and ought to 
 
 have been forefeen and prevented. Neither will 
 
 any 
 
 * It is deferving of notice, that writers on this fubjeft have 
 generally confounded two things that are very different j the 
 natural and expe&ed dtttr\or2i{\on of the fubjeft, and its pre- 
 exijlenty though latent defedl. '* Infurers/' fays the Guidon, 
 *' are not liable for the defeciive, injufficievt, or perijhable na- 
 " ture of the thing infured." But the freedom of the un- 
 derwriter from rifk, in thefe cafes, is founded on very differ- 
 ent principles. 
 
 He is not, on the one hand, liable for the ordinary effefts 
 of the perijhable nature of (hip or cargo j becauie thefe efFe£ls 
 are not a matter of accident, they ^x^ forefeen and expe£ied. 
 
 The pre-exijient defeSi or injufficiency , on the other hand, of 
 either fhip or cargo, may be latent 5 in which cafe, the dif- 
 covery of fuch defeft, within any given time, or in the 
 courfe of any particular adventure, will be unforefeen and 
 unexpected, and might therefore become the proper object: 
 of infurance : But the infurer is freed from the efFefts of la- 
 tent pre-exiJlent defeSi, from the principle that error in con- 
 trades deftroys the confent of parties. He is in no degree 
 relponfible for the perifhable nature, but he is for pre-exift- 
 ent defedf , unlefs it goes fo far as to make the (hip not fea- 
 worthy. See Part i. ch. 2>
 
 Loss FROM THE AcT OF A PaRTY. 1 37 
 
 any man be allowed to fecure himfelf againft 
 the confequences of his own fraud or negligence. 
 The principle is perhaps obvious ; it admits, 
 however, of fome ftriking illuftrations in the law 
 of infurance. 
 
 Thus, in cafes of damage arifing from re- 
 Jlraint or enibargo, it is faid, " where a policy 
 " of infurance is againft reftraint of Princes, 
 " that extends not where the injured navigate 
 '« againft the laws of countries, or where there 
 •' ftiall be a feizure for not paying cuftom, or 
 *' the like." Per Hutcbins, L. Commijf. i, Vern, 
 
 176. 
 
 Bvthe ordinance of Hamburgh, *' all the da- 
 " mages which happen to Ihip or goods, by 
 " means of any arrefts or reftraints, and which 
 '' the infurer is to bear, are to be underftood of 
 " thofe cafes, when the arreft is to be laid by 
 " the fovereign authority of Kings, l^c, ; but 
 " not, indifcriminately, when private perfons, for 
 *' any particular demand they may have upon 
 " the ikippers, owners, or the fliip, fliall caufc 
 " the fhip or goods to be arrefted or molefted 
 " by the Magiftrate ; in which cafe the infurer' 
 *' is not liable, /i/rtr as relates to thofe that gave 
 " occajion to the arrejl, but otherwife, and in cafe 
 " there was no foundation or lawful caife for it, 
 " then the afturer remains liable to the fuftcr- 
 " ing party ; and fo likewife all others concern- 
 •' ed, on whofe account the arreft was not laid, 
 *' ftiall remain entitled to their demands upon 
 
 S " the
 
 138 Nature of an Insurance Contract. 
 
 " the infurers, whether the arreft was well 
 " founded or not." 
 
 We have already noticed feveral coniidera- 
 tions which deflroy an infurance upon illicit 
 trade. The principle now mentioned, affords a 
 farther reafon why the underwriter fhould not 
 be liable for detention or confifcation on account 
 of a contraband cargo, becaufe this muft be ow- 
 ing to the fault and mifdemeanour of the owner 
 or freighter*. 
 
 *' An accident," fays Valines, " is not that 
 " which happens through the defedt, or perifh- 
 " able nature of the thing infured, nor through 
 " the a6t or fault of the proprietor \y 
 
 4. The point is by no means fo clear, when 
 it is enquired, *' How far the infurer is free 
 " from damage occalioned by the fraud or negli- 
 *' gence of the lliipmafter or crew ?" 
 
 It will throw light upon this queftion to at- 
 tend to the diftindion between an infured who 
 is owner of the fhip, and one who is only a 
 freighter of goods. 
 
 It requires no illuftration, that when a perfon 
 commits his goods, for hire, to any common 
 carrier, he is entitled to expedl honefty and 
 
 diligence 
 
 * See /. 3. Cod. De naut.fcenore. " Qui fufcipit In fe peri- 
 culum navigationis, fufcipit periculum fortunse, non culp^/^ 
 is the obfcrvation of the commentators upon this law. 
 
 •j- 2. VaL Com, 12, 14. 74. 79.
 
 Loss FROM THE AcT OF MaSTER AND CrEW. I 
 
 39 
 
 diligence from the perfon to whom his property 
 is thus entrufted. And if it fuffers damage, ei- 
 ther from want of ordinary care, or from em- 
 bezzlement, in the hands of a fervant, the 
 mafter, who reaps the benefit of the hire, and to 
 whom the proprietor is fuppofed to have trufted, 
 muft be accountable. This ftate of obligation is 
 reafonable in itfelf, and highly expedient ; and 
 it has been fettled by repeated decilions. 
 
 In the cafe of goods put on board a lliip, it is 
 the mafter of the iliip to whom the proprietor of 
 thefe goods muft look for indemnification in re- 
 gard to any lofs he may fuftain from the negli- 
 gence or knavery of the failors. *' The reafon," 
 fays MoLLOY, " why the mafter ought to be li- 
 " able, is, becaufe the mariners are of his own 
 " chuling, and under his corredion and go- 
 ** vernment. If they are faulty, he may punifli 
 ** them ; and, if they are guilty of embezzle- 
 " ment, he may reimburfe himfelf out of their 
 " wages." 
 
 The fame argument holds from the mafter to 
 the Ihip owners. The owner of a fliip appoints 
 the mafter ; and it is to him that the freighter 
 trufts for the mafter's good conduct, as he has 
 the ultimate management and direcflion of every 
 thing on board ; he likewife reaps the advantage 
 arifing from the freight. It has been found, 
 therefore, by repeated decifions, that the owners 
 of fhip are refponftblc for the captain -^vhom 
 
 they
 
 14^ Nature of an Insurance Contract. 
 
 they employ, and the extent of this obligation 
 has been regulated by ftatute *. 
 
 So far as the owner ofjhip^ therefore, is the 
 afTured, an underwriter cannot, without an ex- 
 prefs bargain^ be fuppofed liable to him for 
 the mifbehaviour of mafter and crew. For them^ 
 the afTured owner is ultimately refponfible; and 
 their deeds are his. To fubjedl the underwriter 
 in fuch a cafe, would be to relieve the affured 
 from all confequences ariling from the careleflnefs 
 or difhonelly of his own appointments, and to 
 give hi7n a claim againft the infurer, from that 
 very careleffiiefs or difhonefly. A bargain of this 
 nature mult appear very lingular ; and although 
 it has prevailed in the pradice of infurance, it is 
 certainly not confequent upon the natural ftate 
 of obligation arifnig from that contract, but mull 
 have been introduced by exprefs ftipulation. 
 
 In fad:, fuch an interpretation of the policy, 
 could have no other effed than to make the money 
 change hands ; for naturally, and independent of 
 exprefs provilion, the fliip-owner is liable for the 
 ad and deed of his fervants ; and the merchant 
 who fuifers in his property by the mifbehaviour 
 
 of 
 
 * This point with regard to the obligation and refponfibi- 
 lity, between mafter and owner, does not appear to be ftriftly 
 connected with the prefent fubjecft: ; and it is therefore fuffi- 
 cient upon this head to refer to the following authorities, — 
 Bo/on V. Sandford. i'a/i. 440. Lane v. Coiion. Saik. 18. 
 JDigeJl de exerc : aBione. Dig. Kautce, Caupones, Stahula^
 
 Loss FROM THE AcT OF MaSTER AND CrEW. I4I 
 
 of mafter and crew, has, at common law, an ac- 
 tion for indemnification, both againft the delin- 
 quent, and his employers. Unlefs this be remo- 
 ved by exprefs bargain, the claim of the fhip- 
 owner upon the policy would be met by a coun- 
 ter-claim of damages arifmg to the underwriter, 
 from the mailer's delinquency. 
 
 Where the alTured is merely 2ijhipper of goods, 
 the fituation of parties is fomewhat different; 
 though not fo different, as to lead upon the whole, 
 to an oppofite conclulion. 
 
 The aHuved Jbipper of goods has not the direc- 
 tion of the adventure ; he does not appoint the 
 mailer or crew ; they are not his fervants ; his 
 connexion with their proceedings is a great deal 
 more remote than that of the Jbip-owner. 
 
 Nqither, as in the former cafe, will the affured's 
 aclion upon the pohcy be met by any counter- 
 claim upon the part of the underwriter. For 
 although, upon the infurer's paying the lofs, he 
 acquires right to the merchants claim of damages 
 againft the delinquent mafter, and the owners of 
 the fhip his employers ; yet he is here liable to 
 the fbipper of goods in the firft inftance, and is 
 left to feek his redrefs as he beft can.- 
 
 But, even in this cafe, there appears fufhcient 
 
 reafon to conclude that, JiaturaUy, and without 
 
 exprefs provifion^ the underwriter could not be 
 
 fubjedled to lofs arifmg from the mifdemeanour of 
 
 mafter or crew. 
 
 It
 
 142 Nature of an Insurance Contract. 
 
 It appears a very unfavourable conflrudlion of 
 any bargain, to infer, by implication, that oneper- 
 fon means to take upon himfelf the confequences 
 of another's delinquency to the commiflion of 
 which he has had no acceffion ; belides, there 
 feems to be lefs occalion for the remedy of infu- 
 rance in cafes of damage by fraud and negli- 
 gence, than in thofe lofles which arife from the 
 operation of unintelligent caufes. When a mer- 
 chant fuffers by winds or waves, he has no means 
 of redrefs againfl thofe minifters of adverfe for- 
 tune ; and he muft of neceffity feek to fecure 
 himfelf againft fuch contingencies, by having 
 recourfe to thofe who are willing to undertake a 
 great future rifle, for a fmall prefent emolument. 
 But when damage refults from fraud or negli- 
 gence, the injured party has his recourfe againft 
 the delinquent, or his employers. 
 
 But farther, although the affured Jhipper of 
 goods does not appoint the mafter or crew, he, 
 neverthelefs, appears to be infinitely more con- 
 nected with them than the underwriter is. He 
 looks round for a proper vefTel to tranfport his 
 merchandife, and he fingles out one belonging 
 to owners, upon whofe honefty he thinks he can 
 depend, wdth regard to her future deftination, 
 and to whofe attention and fkill he can truft, with 
 regard to the appointment of proper navigators. 
 But the underwriter muft be, in a thoufand 
 cafes, totally unacquainted with the charader 
 and circumftances of the ftiip-owners ', and with 
 
 regard
 
 Loss FROM THE ACT OF MaSTER AND CrZW. 1 43 
 
 regard to the fliip's deftination, he mud depend 
 entirely on the information of his aflured. If, 
 therefore, the Jhipper of goods makes choice of a 
 veffel belonging to owners who fhall be either 
 dilingenuous with regard to the plan of the ad- 
 venture, or carelefs in the appointment of mailers 
 and crew, he feems to have, in a very great de- 
 gree, himfelf to blame; and he ought naturally 
 to bear the confequences of his own mifcondud 
 and improper choice. *' When one of two in- 
 " nocent perfons," faid Mr Jujl. Buller, (in 
 Fitzherbert v. Mather) " mull fuffer by the fault 
 *' of a third, the queftion is, who gave credit ; 
 " and the one who trulted mull take the confe- 
 ** quences.*' 
 
 And this leads to a confideration that appears 
 conclulive. The underwriter mull be fuppofed 
 to depend upon his aflured, for the whole of his 
 information with refpedl to the plan and con- 
 dud: of the adventure. He undertakes a rilk, 
 precifely fuch as it is reprefented to him, and as 
 it appears ex facie of the policy. But if, in con- 
 fequence of a breach of contraEl on the part of 
 the Jhip-owner, or, what is the fame thing, a 
 breach of orders on the part of the owner's fer- 
 vant, the plan or condud of the adventure 
 Ihould be varied from the policy ; this is a' dif- 
 ferent rific from what the infurer meant to un- 
 dertake ; and he will not, by conilrudion, be 
 fubjeded to a lofs which is no; within the terms 
 of his bargain. In fhort, to place this matter in 
 
 a
 
 144 Nature of an Insurance Contract. 
 
 a fimple point of view, let th^Jbip-owner be con= 
 fidered as the fame perfon with the majler, for 
 whom he is refponlible ; and it will be evident 
 that the underwriter never can, without an ex- 
 prefs bargairiy be fubjeded for the owner's faulty 
 or fraudulent breach of contraft. This is, in 
 facl, one afped of a general dodrine, which 
 Ihall be afterwards more fully illuftrated ; that 
 the infurer is not naturally liable for any \^ria- 
 tion from the terms of the policy. 
 
 Upon the whole, it appears, that, unlefs there 
 be an exprefs claufe to that efFedt in the contract, 
 the infurer cannot be underftood to fubjed: him- 
 felf to the confequences of fault or fraud of the 
 Jhip'Owner, nor, what is perfedly fynonimous, of 
 fault or fraud of majler or crew. 
 
 This idea feems to have been received among 
 thofe flates in which infurance firlt introduced 
 itfelf ; probably from the tendency there is to 
 limit, rather than extend, the interpretation of a 
 contradl which is new and unufual. 
 
 By the practice of the Italian States, malverfa- 
 tion, or barratry, as it is called, of mafter and 
 crew, is held to be at the rifk of the alTured, un- 
 lefs the contrary be exprefsly provided *. 
 
 It was held, in the fame manner, in the king- 
 dom of Cajlile, that " the indemnification which 
 " is at the rilk of the infurer, is underftood to 
 ** extend to accident, but not to what happens 
 
 " from 
 
 * Decif. Rotce Genoee, 3. § 15. Ord. Gen, No, 154. Fo- 
 Hcy at Florence. Magens, vol. 2.
 
 Loss FROM THE AcT OF MaSTER AND CrEW. I45 
 
 ** from the fault of the alTured, nor through the 
 *'' fault of the mafter of the JJnp "^ :' 
 
 RoccuSy an Italian writer of fome note, feems 
 to adopt a confequence of the fame principle. 
 He thinks, that, if robbery be committed on the 
 feas by pirates, this is the ad of third parties, 
 and the infurer is liable ; but if theft or embezzle- 
 ment happen within the Ibip, the underwriter is 
 not refponfible ; for, fays he, *' this is not the ef- 
 " feet of accident, but bad management, and for 
 " fuch embezzlements the mafter himfelf is li- 
 *' able." This is maintaining, that the infurer is 
 not liable to an a.ffured Jhipper of goods, for da- 
 mage ariling from the matter's fault, or crime |. 
 
 T Similar 
 
 * " EI feguro que es a cargo del afTegurador, fe entien- 
 " de fucediendo por cafo fortuito j mas no fi fucede por 
 ** culpa del s'alTegurado, ny por culpa del maeflre de la 
 " nave." Chirac^ p. 296. quotes El Laberinto del Comer' 
 cio, of Jo, de Evia. 
 
 f " Primus cafus eft, fi furtum committatur in mari, per 
 ** piratas, et tunc inter cafus fortuitos connumeratur, et aH- 
 " fecurator, fufcipiens in fe cafus fortuitos, tenetur in cafu 
 " furti, Not. 41. Secundus cafus eft, li furtum fuit commifTum 
 " in navi, et aliqus merces fubripiantur j" (that is, an em- 
 bezzlement to the prejudice of an affuredyhipper of goods,") 
 " et tunc, pro hoc furto, ajfecuratoresnon tenentur ^ turn quia 
 *' dominus tenetur eas cuftodire, et, fi furats fint in nave, 
 " non videtur hoc ex cafu fortuito evenifle, fed ex negligen- 
 " tia non bene cuftodientium j" (this ieems to imply, either 
 that the proprie.tor of merchandlles was underftood to ac- 
 company his goods in perfon, and was bound to guard 
 them from embezzlement j or elfe, that he was himfelf an- 
 fwerable for the fliipmafter to whom he entrufted them,) 
 
 " turn
 
 146 Nature of an Insurance Contract. 
 
 Similar views have been adopted by authors 
 of a more modern date. " In general,'* fays 
 Denifarty *' the infurer is liable for accidents of 
 ** the fea ; but not for lofTes which h-appen 
 ** through the a6t of the aflured, nor from the 
 ^^ fault of majler or crew*^ 
 
 And we find an exprefs provilion to this pur- 
 pofe, in fo modern a code as that of Lewis 
 XIV. which can only be imputed to improved 
 notions upon the fubje6t : *' The infurer fhall not 
 " be obliged to bear the lofles and damages ari- 
 " fing to the fhip and goods, through the mailer's 
 " and mariners fault, unlefs, by the contrary he be 
 *' engaged for the majler'' s mifdemeanours \.^'' 
 
 As commerce advanced, that fufpicion of fraud, 
 which prevails in the infancy of trade, gradually 
 wore off; infurance became more common, and 
 its advantages were more felt ; and in fome 
 
 countries 
 
 ** turn etiam, quia pro furto in navi commifTo, tenetur magi- 
 *' fler navis, quia per receptionem mercium, tacite videtur 
 ** pacifci ut falvse reftituantur." (That is to fay, the infa- 
 rer is not liable, becaufe the proprietor of goods may indem- 
 nify himfelf, independent of infurance, by an a<ftion agalnft 
 the faulty perfbn.) Roccus, Not. 42. De j^jfecur. Among 
 all the older commentators, it is a matter of dlfquifition. 
 Whether damage by theft is to be reckoned as one of thofe 
 accidents that are provided againft by an infurance-policy. 
 Lofs arifing from the adt of an intelligent agent does not 
 figure to the mind fo flrongly in the light of accident. But 
 the point is too clear to bear argument. 
 
 * Denifart. CoUeEi. de Jurifpr. ('voce Ajfurance.') 
 
 f Qrd. Fr. dei JJlir, \ 28, Magens 2. Z72.
 
 Loss FROM THE AcT OF MaSTER AND CrEW. 1 47 
 
 countries the old form of this contradl by de- 
 grees received a more extenfive conftrudtion, 
 while, in others, it was rendered applicable to a 
 greater variety of cafes by the introdudion of 
 ^xprefs claufes and ftipulations. 
 
 And here a diftindion, formerly alluded to, na- 
 turally prefented itfelf; the diltindion between 
 an affured owner of Jh'ip, iXiCi Jlnpper of goods. 
 We find it held by feveral writers, and inculca- 
 ted by the regulations of mercantile ftates of no 
 mean rank, that the underwriter is liable for the 
 mildemeanours of the captain and crew, to the 
 Jhipper ofgoodsy though not to th^Jhip-owner. 
 
 That ancient and curious French treatife, the 
 
 Guidon, gives an explanation of barratry j which 
 
 feems rather applicable to fraud in relation to 
 
 goods, than to thtjhip. '* And of this," it adds, 
 
 *' the infurer runs the rilk ; only the affured 
 
 ^^ Jhipper of goods, (niarchand chargeur,) is bound 
 
 « to profecute the mailer himfelf in the firil in- 
 
 " ftance*." 
 
 The fame book treats of infurance on the body 
 
 of the/hip, in a feparate chapter, as a fubject to- 
 tally unconneded with that barratry, for v/hich 
 the infurer is liable f. And lays it down, that, 
 " if infurance be made upon the hull of a/hip, 
 •' the underwriter is not liable for the malver- 
 *' fation, fraud, or deceit of the mailer, be- 
 
 *' caufe 
 
 * Chiracs -Guidon, c. 9. § I. De barai, baraierii. 
 f Ch. 14. Des Jfurancisfur Corps de IScf. \ 4.
 
 148 Natur£ of an Insurance Contract. 
 
 " caufe the aflured owner^ {bourgeois,') has cho- 
 " fen him, and approved of his fkill and ho- 
 ** nefty, and may depofe him, if he proves un- 
 '* w^orthy." 
 
 Cleirag, in his commentary on this laft paf- 
 fage obferves, that " it applies to the fpecial cafe 
 *' of an owner y who injures his Jhipy conducled 
 ** by a mafler of his own chufing, which is dif- 
 ** ferent from that of a merchant who injures his 
 ** goodsy loaded in fuch a Ihip as he can find, and 
 ** who has no authority over the mafler *. 
 
 Roccus, an author formerly quoted, mentions 
 
 this as a point about which doubt had been 
 
 entertained ; '* For," fays he, " to the alTured 
 
 ** who has /hipped goods on boards nothing can be 
 
 *' imputed fo as to make the fault of mafler or 
 
 *' crew any thing elfe than mere accident as to 
 
 ** him ; unlefs thejhipper of goods be at the fame 
 
 " time ouoner ofthejhip, for then he will be liable 
 
 " for the mailer's fraud ■}-." 
 
 The 
 
 * Cleiracs Guidon, p- 319. 
 
 •)• " Nam afTecurato, qui bona fide pofuit merces in elecfla 
 *' navij nee tautam notitiam et fidem de magillro navis ha- 
 *' bebat, non poteft aliquid imputari quin dicatur cafu^ 
 " fortuitus et iub aflfecuratione comprehenfus j nifi domi- 
 " nus mercium eflet etiam dominus navis, quia tunc ad 
 " cum fpedl:aret fraus navarchi." Rocc. de AJfec. Not. 44. 
 The reader will find it very difficult, or rather Impoffible, 
 •(0 reconcile the opinions of the different commentators with 
 one another upon this point, or even to make them confiftent 
 with themfelves. See Santerna, p. 3. \ 68. Roccus, num. 40. 
 etfeq. : — and above all, Cafa-regis, difc, i. \']l' et feq. vicith 
 the authorities there quoted.
 
 Effect of a Clause of Barratry. 149 
 
 The regulations of the great cities of Holland, 
 explicitly adopt the fame dillinc^lion. Thefc 
 fhall be Hated more fully afterwards. 
 
 5. But whatever may be the natural obliga- 
 tion of the infurer with regard to lofs occafioned 
 by the mifdemeanour of mafler and crew ; whe- 
 ther, as feems moil reafonable, the underwriter 
 is, in no cafe, liable for fuch lofs, without an ex- 
 prefs bargain ; or whether, according to the di- 
 ftinclion above flated, he is naturally liable to 
 an allured JJApper of goods ^ though not to an af- 
 fured owjier of Ihip ; the greater part of mo- 
 dern nations have not left this point to depend 
 upon conjlruclion merely, but, imprelTed with the 
 advantages of infurance, they have carried it to 
 a length that is abfurd and dangerous. They 
 have very generally adopted an exprefs ftipula- 
 tion, by which the underwriter becomes refpon- 
 fible for the fault, and even for the fraud of the 
 mailer and crew. 
 
 The eifed: of a claufe of this nature in fa- 
 vour of an alTured Jlnpper, mull be to preclude 
 the underwriter from founding a defence on 
 any variation from the plan of the adventure, 
 which has originated with the mailer or crew. 
 Its effedl, in favour of an affured Jhip-owner, 
 mull be, farther, to transfer the refponfibility 
 of the owner for his fervants, and to cut off 
 any claim of damages which the underwri- 
 ter might have againll him from the de- 
 linquency of mafler and crew. The danger- 
 ous
 
 i5o Nature of an Insurance Contract. 
 
 ous tendency of fuch a bargain is very obvious. 
 In the former cafe, it deilroys a great motive to 
 fidelity in the iliipmafter, by removing the in- 
 terefl which the merchants, his employers, have, 
 in that fidelity. But, in the latter cafe, it is a 
 contrivance by which a man may fecure him- 
 felf againft the confequences of his own negli- 
 gence or dilhonefty, in the appointment of im- 
 proper perfons to offices of trull. It is not fur- 
 prifing, therefore, we find feveral Hates reproba- 
 ting altogether the idea of fuch a contrad. 
 
 *' No infurance," fays the Ordinance o? Atit- 
 werp, " fliall hereafter be allowed againft the 
 " barratry, roguery, or other milbehaviour of 
 *^ the mafter or Ihip's crew ; all ufages and 
 " cuftoms to the contrary are hereby aboliftied ; 
 " and all fuch contradls are declared void, and 
 "of noeffea*." 
 
 By the regulations of Spain, as well as by 
 
 the expreffion of their policies, whether on 
 
 Jbip or on goods ^ — *' infurance is to be un- 
 
 derftood againft the fea, wind, fire, enemies, 
 
 friends, and any other accident that can hap- 
 *' pen, except barratry of the viajler, or a defici- 
 " ency of the merchandife |." 
 
 With regard to the propriety or legality, how- 
 ever, of fuch a bargain, there muft appear, from 
 what has been already ftated, a confiderable 
 difference between the fituation of an afTured 
 
 Jhipper 
 
 * Ord. Antw. No. 54. See Magens, 11. 2. p. 25. 
 
 i Ord, Spain J No. 42. Forms of Span, policies. 
 
 it
 
 Effect of a Clause of Barratry. 151 
 
 fhipper of goods, and owner of fhip. It is to the 
 laft of thefe Lord Mansfield alludes, (in the 
 cafe of Nutt v. Bourdieu), when he fays, " The 
 <' provifion againft barratry h a very extraordi- 
 " nary one. It is ftrange it fhould have crept 
 " into our policies, and more fo, that it fliould 
 *' have continued in them fo long. That the 
 *« underwriter ihould infure the conduct of the 
 *' captain, whom he does not appoint, and can- 
 " not difmifs, to the owner who can do either." 
 From fuch views as thefe, the great towns of 
 Holland have adopted a diftindion which feems 
 to be well founded. By Ord. Rotter d. § 43. if 
 the mailer has been appointed by the affured 
 owners, there can be no provifion againft his 
 barratry ; but if he has rifen to that ftation in 
 the courfe of the adventure, and without their 
 interference, fuch an alTurance is permitted. 
 
 It appears to be the univerfal pradlice of Hol- 
 land *, to diftinguiih between an affured owner 
 ofjhip, ^.n^Lfiipper of goods. The form of a po- 
 licy upon Jh'ip being in favour of the owners, 
 contains no provifion againft the fraud of the 
 mafler, but only that of the crew, with whom 
 the connection of the owners is not fo immediate. 
 The policy on goods, in favour of the merchant, 
 contains a provifion agamft the fraud of both 
 crew and mafler. 
 
 The Copenhagen form of a policy on Ihip 
 infures againft " negligence of the mafter, and 
 
 *' (bin's 
 
 * See Magens, vol. 2. Forms of Policies at /itnji. and 
 Middteb Byni. ^ Jur. priv. p- SSS-
 
 1^2 Nature of an Insurance CoNXRAct. 
 
 " fliip's company, barratry of the fhip's company 
 '* only, and not of the mailer." That on goods 
 provides for *' barratry and negligence of the 
 " mafter, and fhip's company*." 
 
 It muft, however, be acknowledged, that the 
 appointment of fervants to a difficult trull, and 
 remote from the eye of their employer, is a mat- 
 ter, in which the greateft attention and honefty 
 cannot always command fuccefs. It is a matter 
 which depends as much upon good fortune as 
 good management. The regulations of the great- 
 er part of mercantile ftates have entered ftrongly 
 into this view. In England, the legiflature has 
 provided, by fpecial llatute, that merchants who 
 may fuffer by the embezzlements of mafter or 
 crew, Ihall not have recourfe againft the fhip- 
 owners, farther than to the value of fhip and 
 freight f. Such conliderations have overbalan- 
 ced the danger of fraud from an infurance on 
 the behaviour of mafter and crew. 
 
 If therefore any perfon chufes to undertake 
 the rilk of warranting to another, the honefty 
 and diligence of his fervant, it has not, by moft 
 nations, been thought juft or expedient to pre- 
 vent the fhip-owner from obtaining fuch fecu- 
 rity. And the underwriter may, by an exprefs 
 claufe, fubjedl himfelf, even to the owner of fhip, 
 for the mifdemeanours of mafter or crew, always 
 fuppofing, there is no proof of accellion upon 
 
 the 
 
 * Magens II. p. ^2^, 324. 
 
 I See Stat. 7, Geo.ll. c. 15. (1734.)
 
 Effect of a Clause of Barratry. 153 
 
 the part of the aflured himfelf. From the ten- 
 dency of mercantile nations to extend the prac- 
 tice and application of the contradl of infurance, 
 fuch provilions againft the mifbehaviour of mailer 
 and crew have become very general in Europe. 
 
 6. In Britain, all policies, without difcrimina- 
 tion, provide againft barratry of the majier and 
 7iiari?iers. Barratry, fay all our authorities, means 
 fraud, deceit, dilhoneft intention. It comes from 
 the Italian, baratrare to cheat. The application 
 of the term feems to be perfedly general, to 
 every fpecies of knavery. 
 
 There is fome reafon, however, to believe, that 
 the idea of an infurance againft the fraud of the 
 mafter and ftiip's company, firft introduced itfelf 
 where they were fraudulent, by running away 
 with the Jfjip; that being the cafe, in which the 
 alTured, by the abfence of the mafter, was de- 
 prived of his natural recourfe againft the delin- 
 quent himfelf. 
 
 Upon this fuppolition, we may account for a 
 diftindion adopted by the earlier writers, and 
 mercantile ordinances, between barratry and em- 
 htzzlement. By the Florentine policy, '* infurers 
 " are to be liable for all misfortunes, (b'c. not ex- 
 " cepting the barratry of the mafter, i^c. ;" 
 " the infurers, at the fame time, declare, they 
 " will not be liable for what the mafter of the 
 " fliip fteah or embezzles *." The reafonings 
 
 U in 
 
 * Ord. ofFlor. No. 9, 10. See Roccus, who makes the fame 
 dlftin6tion.
 
 154 Nature of an Insurance Contract. 
 
 in feveral adjudged cafes, to be ftated in the fe- 
 quel, confirm the fame hypothelis. 
 
 The claufe of infurance againft barratry, how- 
 ever, has long been interpreted as extending to 
 every fpecies Q>i fraudulent malverfation. 
 
 Perhaps the fame hypothefis may afford a pro- 
 bable reafon, why it has become common ta 
 infure againft fraud, and not againft negligence. 
 The original view of infuring againft mafter 
 and crew, was to provide a fecurity from thofe 
 malverfations only, which, by the flight of the 
 mafter, deprived the owner of his recourfe a- 
 gainft the culprit himfelf. 
 
 Some nations, however, provide againft negli- 
 gence. The policies of the great Dutch cities, 
 which in refped to the whole do<5lrine of barra- 
 try, feem to be confiderably fyftematic, and thofe 
 of Copenhagen, contain a ftipulation of this kind. 
 In a policy on Jlnp, the aflured owner provides 
 " againft fraud or barratry of the crew only ; and 
 ** negligence, both of mafter and crew." In a 
 policy on goods, the affured merchant, provides 
 " againft frauds or negligences of either mafter 
 *< or failors=*.'* 
 
 The pradice oi Hamburgh fubjecls the infurer 
 
 to the " mijlake, negledl, or malice of the mafter, 
 
 «' or his mariners ■]-." 
 
 In 
 
 * On fliip. " Onaghtfamheid van fchippers en Bootf- 
 '' gefelen, ook fchelnnerye van de voorfte Bootfgefelen." 
 On goods. " Schelmeryen en onaghtfamheiden van fchip- 
 <' pers en Bootfgefelen."
 
 Effect of a Clause of Barratry. i 
 
 o:> 
 
 In fome countries, the ftipulation with regard 
 to barratry is underftood to comprehend grofs 
 fault. The Guidon explains barratry as nearly 
 fynonimous with breach of contradl ; and as ex- 
 tending not only to fraud, and to negligence, but 
 likewife to all deviations made by the Captain, 
 without the knowledge of the aflured*. The 
 French Ordinances fay, that " infurers fliall not 
 *' be anfwerable for the lofs or damage that may 
 *' happen to fhip or goods, through the fault 
 " of mailers or mariners, unlefs, by- the policy, 
 " they be liable for barratry \. 
 
 But, in Britifh policies, there is no exprefs pro- 
 vifion with regard to negligence, or mere fault, 
 in oppolition to difhoneft intention ; and it has 
 been fettled by repeated deciiions, that barratry 
 is applicable to fraud only, and implies fome- 
 thing of a criminal nature. 
 
 It remains to illuitrate, by adjudged cafes, 
 thefe two pofitions lad flated. 
 
 Cafe. 
 
 * " Barat, ou baraterie de changement de patron, eft le 
 " changement qui fe fait des maiftres de navires, voyages, 
 " efcales, reftes, havres j malverfations, roberies, larcins, 
 " alterations, deguifemens des marchandizes, k tout pro- 
 " cedant du patron du navire, equipage, et negligence d^iceux.'^ 
 Guidon, c. 9. § I. It is difficult to fee how a " changement 
 " des maiftres du navire," can come untler the chapter of 
 accidents, " procedant du patron," which, however, is ne- 
 ceflary to conftitute barratry. 
 
 f Magens, v. 2. 172.
 
 156 Nature of an Insurance Contract. 
 
 Cafe. Where a fliip was infured againfl the bar- 
 ratry of the mailer, in an adlion brought there- 
 upon, the jury found, that the fhip was loft by 
 the. fraud and negligence of the mafter. The Court 
 held, that if the mafter ran away with the Ihip, 
 or embezzled the goods, the merchant may have 
 an a6lion againft him ; for it is reafonable, that 
 merchants, who hazard their ftocks in foreign 
 traffic, lliould fecure themfelves in what manner 
 they think proper, againft barratry of the mafter, 
 and all other frauds. And this muft be intend- 
 ed fraud of the mafter, and not a bare negledt ; 
 and they all agreed, Xh^Xfraiidis barratry, though 
 not named in the contrad: ; but negligence might 
 not. I. Modern Rep. 230, 231. 
 
 Knight v. Cambridge. 
 
 Cambridge brought a writ of error upon a 
 judgment given againft him in the common 
 pleas, in an action brought by the plaintiff" upon 
 a policy of infurance of the ftiip, Riga Merchant y 
 " at and from Port Mahon to London." And 
 Serjeant Braithwaite, for the plaintiff" in error, 
 infifted, that the judgment was erroneous, be- 
 caufe the breach was ill afligned. For the po- 
 licy was, that the defendant Cambridge fliould 
 infure the faid fliip, among other things, againft 
 the barratry of the mafter, and all other dangers, 
 damages, and misfortunes, which Ihould happen 
 to prejudice of the faid ffiip , and the breach af- 
 
 figned
 
 Effect OF A Clause of Barratry. 157 
 
 iigned was, that the fhip in the faid voyage, per 
 fraudem et negligentiam magijlri navis prcedidee, 
 depreffa etfuhmerfafuit^ et totaliter perdita et amif- 
 fafiiity etnullius valoris devenit. This, he inlifted, 
 was not within the meaning of the word barra- 
 try ; but the breach fliould have been exprefs, 
 that the ihip was loft by the barratry of the 
 mafter ; belides the owner of the goods has a re- 
 medy againft the owners of the fhip, for any 
 prejudice he receives by the fraud or negled of 
 the mafter ; and, therefore, there is the lefs rea- 
 fon the infurers fhould be liable ; befides, if the 
 word barratry, import fraud, ftill it does not 
 import negledl, and the fadt alleged here is, 
 that the fhip was loft by the. fraud and neglect of 
 the mafter. But the court was unanimoufly of 
 opinion, that there was no occafion to aver the 
 fa6t, in the very words of the policy ; but if the 
 fad alleged came within the meaning of the 
 words in the policy, it is fuftlcient. Now barra- 
 try imports /rflz/(i. (D« Frene, Glofs. v, Baratariuy 
 fraus, dolus,) and he that commits a fraud may 
 properly be faid to be guilty of a negled, viz, 
 of his duty. Barratry of a mafter is not confined 
 to his running away with the fhip ; and the ge- 
 neral words of the policy ought to be conftrued 
 to extend to lolTes of the like nature, as thofe 
 mentioned before. Now lofTes arifing from the 
 fraud of the mafter, are of the like nature as if 
 Jie had run away with the fhip, (fuppofing bar- 
 ratry
 
 158 Nature of an Insurance Contract. 
 
 ratry to be confined to that, which it is not,) be- 
 caufe it imports any fraud. And the judgment 
 was affirmed. April 27. 1724. Raym, 1349. 
 Strange* s Reports^ 581. 
 
 It mull here be obferved, that, without a claufe 
 againit barratry in the policy, there are feveral 
 fpecies of malverfation of the mailer, or breaches 
 of contrail, which, inllead of fubjecling the in- 
 furer, would have the effect to free him entirely 
 from rilk. For example, all valuations from the 
 line of voyage llipulated, though made with a 
 criminal intent, inllead of fubjedling, would li- 
 berate the infurer, without this exprefs claufe ; 
 and notwithllanding this claufe, all deviations 
 that are not fraudulent^ (as will be afterwards 
 lliown,) dellroy the obligation upon the part of 
 the infurer. 
 
 It becomes, therefore, of importance to define 
 accurately what circumllances conllitute fraud 
 in the mailer, and dillinguilli a breach of the 
 contrail by barratry from any other. And here, 
 it Ihould feem, that a mailer mufh always be 
 fuppofed in mala fide, and guilty o? fraud, when 
 he commits any ad that is clearly illegal and cri- 
 minal. 
 
 Three circumllances feem, in moll cafes, elTen- 
 tial to conllitute barratry. That the mailer 
 ihould ad: contrary to his inflru5iions ; with a 
 view to his own private advantage j and to the 
 evident detriment offoms party concerned. 
 
 The
 
 Effect of a Clause of Barratry. 159 
 
 The mafter cannot, in general, be confidered 
 as fraudulent, while he acts agreeable to his 
 inftru6lions. For he is the fervant of the 
 owner of the fhip ; is appointed by him, and 
 muft take his diredions accordingly. He is not 
 prefumed to know the bargains and infurances 
 which may have taken place as to the voyage. 
 If his owner chufes to fubje6l himfelf to the 
 confequences of breaking thofe bargains, or 
 forfeiting thofe infurances, it is a matter in 
 which the mailer is nowife concerned. 
 
 Neither is he guilty of fraud, if, while he does 
 break through his inftrudlions, it is done not for 
 his own advantage, but for the benefit of the ad- 
 venture. It is unneceffary to enquire at prefent 
 how far the mailer is veiled with difcretionary 
 powers in this refped. It will probably be al- 
 lowed, that there are certain cafes in which the 
 mailer may defert the line of voyage marked 
 out in the policy, and vacate the owners in- 
 farance, without the imputation of impropriety 
 or mifconducl. But there can be no doubt, that 
 many fituations exill, in which he may do this 
 from a fuicere defire to confult the intereil of 
 his employers, and, confequently, without being 
 fraudulent. And where the breach of orders in 
 the mailer, though with a view to his own ad- 
 vantage, does not appear capable of hurting 
 third parties, although the mafter may be ralli 
 2indL faulty, he does not deferve to be confidered 
 
 as criminal, 
 
 "To
 
 i6o Nature of an Insurance Contract. 
 
 " To make it barratry, there muft be fome- 
 thing of a criminal nature, as well as a breach of 
 contrast. Strange, 1173. As when a Ihip goes 
 out of its proper courfe by a tortious ad of the 
 mailer or mariners, for their own benefit, which 
 is of the fame nature as a piracy or robbery at 
 fea." 
 
 Stamma V, Brown. 
 
 The lliip the Gothic Lion being advertifed 
 to be going to Marfeilles, goods were fhipped 
 on board her on behalf of the plaintiff, and a 
 bill of loading figned by the mafter, whereby 
 he undertakes to go a droite route to Marfeilles, 
 and the defendant underwrote a policy from 
 Falmouth, (where the goods were taken in), 
 to Marfeilles. Before the fhip departed from 
 the port of London, another advertifement was 
 publilhed for goods to Genoa, Leghorn, and 
 Naples \ and the plaintiff's agent was told, it 
 was intended to go to thefe ports firfl, and then 
 come back to Marfeilles ; but he infilled, that 
 his bargain was to go firfl or diredly to Mar- 
 feilles, and he would not confent to let her 
 pafs by Marfeilles, or alter his infurance. The 
 Ihip, however, did pafs by Marfeilles ; and after 
 delivering her cargo at the other ports, fet out 
 on her return to Marfeilles with the plaintiff's 
 goods. But in her voyage thither was blown 
 
 up in an engagement with a Spanifh fhip. 
 
 And
 
 Effect of a Clause of BarratrV. i6i 
 
 And in an action upon the policy, the breach 
 was affigned, as a lofs by the barratry of the 
 mafter. And the plaintiff infilled, that any fraud 
 or malverfation of the mafler was within the 
 meaning of the word barratry. — Du Frefne terms 
 it, *' Dolus qui fit in contraclibus ;" and fo do all 
 the Didlionavies, as'^FIorio's Italian Di6l, verbo, 
 baratsria ; Mijijhcw, Furetier, &c. ; and that in 
 the cafes, Knigkt and Cambridge, and Knight 
 V. Dod, where the lofs was laid to be perfraudem 
 of the msiller, the court held it to be a good af- 
 fignment of a breach, there being the word bar- 
 ratry in the policy. The defendant's counfel 
 faid, this was no more than a deviation, in which 
 cafe the infurer is difcharged, and the plaintiff's 
 remedy is againft the owner or mafter ; that this 
 cannot be called a crime in the mafter, while he 
 is acting all the time for the benefit of his own- 
 ers. The Chief Jujlice, in his direction to the 
 jury, told them, that this being againft the ex- 
 prefs agreement to go tirfl to Marfeilles, feemed 
 to be more than a common deviation, being a 
 formed defign to deceive the contractor; and 
 compared it to the cafe of failing out of port, 
 without paying duties, whereby the fhip was 
 fubjed to forfeiture, and which has been held to 
 be barratry. The jury ftaid out for fome time, 
 and, upon their return, afked the Chief Juf ice, 
 " Whether, if the mafter was to have no bene- 
 " fit to himfelf bypaffing by Marfeilles, and went 
 " only for the benefit of his ov/ners, that would 
 
 X "be
 
 i62 Nature of an Insurance Contract. 
 
 " be a barratry ?" and the Chief Jujlice anfwer- 
 ing, " No," they found for the defendant. And 
 upon a new trial being moved for, the cafe was 
 argued, and all the court was of opinion that the 
 verdid: was right ; for the mafter has a6led con- 
 fftent with his duty to his owners, and the plain- 
 tiff's agent knew of the intended alteration be- 
 fore the goods were put on board, and might 
 have refufed to Ihip them, or have altered the in- 
 furance. " To make it barratry, there mult be 
 " fomething of a criminal nature, as well as a 
 *' breach of contrad ;" and that here the breach 
 being afligned only on the barratry, was not fup- 
 ported by the evidence : So the defendant had 
 judgment. Strange, iiy^, 16. Geo. IL*. 
 
 Elton v. Brogden. 
 
 The fhip Mediterranean, went out in the 
 merchant fervice with a letter of mark, and 
 being bound from Briftol to Liverpool, was infu- 
 red by the defendant. 
 
 In her voyage, Ihe took a prize, returned 
 with it to Briftol, and received back a propor- 
 tional part of the prem.ium. Then another po- 
 licy was made ; and the fhip fet out with ex- 
 
 prefs 
 
 * It muft probably occur with regard to this cafe, that 
 though it certainly was not barratry, yet there was fome 
 truth in the obfervation, " that it was more than a common 
 deviation," for it was, properly fpeaking, not a deviation^ 
 but an alteration ^f the voyage j the efFedt of which fhall be 
 afterwards confidered.
 
 Effect of a Clause of Barratry. 163 
 
 prefs orders from the owners, that if they tofok 
 another prize, they fhould put fome hands aboard 
 fuch prize, and fend her to Briftol ; but the lliip 
 in queflion fhould proceed with the merchant 
 goods. Another prize was taken in the due 
 courfe of the voyage ; and the captain gave or- 
 ders to fome of the crew to carry the prize to 
 Briflol, and defigned to go on to Newfoundland ; 
 but the crew oppofed him, and infilled he lliould 
 go back, though he acquainted them with the 
 orders ; upon which he was forced to fubmit, 
 and, in his return, his own fhip was taken, but 
 the prize got in fafe. 
 
 And, now, in an aftion againfl the infurers, 
 it was inliited that this was fuch a deviation as 
 difcharged them. But the Court and jury held 
 that this was excufed by the force upon the 
 mailer, which he could not refill ; and there- 
 fore fell within the excufe of neceflity, which 
 had always been allowed. The plaintiff's coun- 
 fel would have made barratry of it; but the 
 Chief Juflice thought it did not amount to that, 
 as the fhip was not run aw^ay with in order to 
 defraud the owners. So the plaintiff had a 
 verdict for the fum infured. Strange, 1264. 
 20. Geo. II. 
 
 This decifion requires an explanation ; and 
 the bcfl that can be given, is Lord Mansfield's 
 commentary upon it, delivered in deciding the 
 cafe Valleio v. Wheeler, to be afterwards Hated. 
 ** I think," fays his Lordfliip, " the mofl pro- 
 
 *' bable
 
 164 Nature of an Insurance Contract. 
 
 " bable ground is, that, as this was a velTel up- 
 *' on a privateering voyage, it was necelTary 
 *' they Ihould take care of the prize when they 
 " had taken it ; and the crew exercifed their 
 " judgment/cr the benefit ofthejlnp."' It is dif- 
 ficult to fee, on any other fuppofition, how to 
 get rid of the idea of barratry of the mariners^ 
 in the tranfadlion in queftion, which is equally 
 provided again ft with barratry of the majler, 
 
 8. It was formerly obferved, that, in general, a 
 mafter cannot be guilty of barratry, while he ads 
 according to inftruclions from his owner. And 
 this pofition was illuftrated by the cafe Stamma 
 V. Brouvi, in which the captain had altered the 
 'voyage^ in confequence of fuch inftrudions. 
 
 It is, however a matter of fome heiitation, 
 whether this polition be well founded in its ut- 
 moft extent. Are there no cafes in which the 
 captain muil be held guilty of barratry, even 
 in obeying his inftrudions ? And who are the 
 perfonswhofe concurrence may juftify him from 
 a charge of this nature ? Is it the ov/ners of 
 the ihip, or the merchants who have Ihipped 
 goods on board ? 
 
 It is clear, in the firft place, that there can 
 "be no barratry in relation to the faip, if the 
 JJnp-owners are advifers of the meafure, in con- 
 fequence of wliich the damage has been fu- 
 ftained. For example, if the mafter, by order 
 of his owners, has attempted to fmuggle, and 
 a confifcation is the confequence, thefe ozvners 
 
 cannot
 
 Effect of a Clause of Barratry. 165 
 
 cannot piirfue the infurers on the claufe of bar- 
 ratry. The fame holds as to fhippers of goods, 
 where, in confequence of fome illegal proceed- 
 ing of the captain, to which they are acceJfory\ a 
 lols arifes to the cargo. 
 
 But lliall the inllruclions of one of the parties 
 concerned in an adventure, liberate the captain 
 from the imputation of barratry, fo as to free the 
 infurers from lofs fuftained by the other parties ? 
 For example, if the captain be intruded, by 
 the owners of thejinp, to commit piracy, and a 
 confequent lofs be fuftained by the goods on 
 board ; will not the claim of the Jljippers of 
 goodSj upon the policy, be efteclual, although 
 that of the owners might not ? Or, fuppofe the 
 captain has received inftrudlions to commit 
 fome a6t that may infer barratry, from one part 
 owner, without the accefTion of the reft ; how 
 far will the fraudulent commands of the owner, 
 in fuch a cafe, wipe off the barraterious accef- 
 fion of the mafter and crew ? 
 
 And here there feems to be room for a differ- 
 ence of opinion. 
 
 It may, on the one hand, be faid, that barra- 
 try appears, from a variety of adjudged cafes, to 
 extend to every meafure of the captain that is 
 criminal. Barratry is fraud, or dijhonefl inten- 
 tion, to the prejudice of the affured. But every 
 crime implies diJJjoTiefi intention. If, therefore, 
 it infers a crime in the mafter to obey the in- 
 llruclions of his owners, the infurers muft, notr 
 
 withftanding
 
 i66 Nature of an Insurance Contract. 
 
 withftanding thefe inftrudions, be liable for bar- 
 ratry. 
 
 To iliuilrate this, let two cafes be diftinguifh- 
 ed. In thcjirjl -place, the owner of a Ihip may, 
 without the concurrence of the proprietors of 
 cargo, inltrudt his captain to alter the courfe or de- 
 flinatioji of the voyage, or fome other circumftance 
 of lefs moment with regard to it. This certain- 
 ly implies fome degree of fraud, or breach of con- 
 tract, againft the fliippers of cargo. It is a fraud, 
 however, of the owner, and not of the majler. 
 The mailer may obey thefe inftrudions, without 
 fuppofmg that any thing improper is intended ; 
 and he is bound to obey his owners in fuch mat- 
 ters. Here, therefore, although a lofs fliould a- 
 rife to the cargo, in confequence of the impro- 
 per inflrudions of the Jhip-owners, Hill, how- 
 ever, the proprietors of goods can have no relief 
 againft the infurers on the /core of barratry. — 
 The captain is not neceflarily crhninal in obey- 
 ing fuch orders. On the contrary, the infurers 
 fliall be liberated from rifk, on account of the 
 vellel having varied from the terms of the infu- 
 rance ; and there will remain, to the injured 
 ihippers of goods, only an a(R;ion of recourfe 
 againft the owners of JJjip, for damages ariling 
 from breach of contra6t. 
 
 It feems accordingly to have been eftablilhed 
 by the cafe Stamvia v. Brown, that in an altera- 
 tion of the 'voyage, or any fuch matter, the in- 
 ilrudions of the owner, although calculated to 
 
 procure
 
 Effect of a Clause of Barratry. 167 
 
 procure an undue advantage over the fliip- 
 pers of cargo, ftiall liberate the captain from the 
 charge of barratry ; and confequently free the 
 infurers. 
 
 But, in the fecond place, the owner may in- 
 ftru(5t the mailer to do fomething that is clear- 
 ly illegal ; for example, to fmuggle, to fink the 
 the iliip, to embezzle the cargo, to evade port- 
 duties. The cafe here is very different. The 
 mailer himfelf mull be held to be fraudulent ; 
 for the criminality of thefe ad:s, and the necef- 
 fary damage which mud refult to the fliippers, 
 are matters of which he cannot be ignorant. 
 Neither can he here be jullified by the com- 
 mands of his employer ; for the orders of a fu- 
 perior will not juflify the commiffion of a crime. 
 In all fuch inftances, therefore, where the fad; 
 alleged is, ex faciei illegal and criviinal, the 
 mailer who executes the fraudulent commif- 
 fion, is himfelf guilty of fraud, and he feems 
 to fall under the charge of barratry, accord- 
 ing to the conllru6lion which a variety of ad- 
 judged cafes have put upon that term. 
 
 However plaufible thefe realbnings may ap- 
 pear, a contrary opinion has been adopted by 
 the firll law authorities in Britain. And it 
 feems to be eflablifhed, by two folemn decifions, 
 that, in all cafes, the captain is freed by the 
 inftruclions of his owners, from the imputation 
 of barratry, and, confequently, no adlion lies 
 
 again It
 
 i68 Nature of an Insurance Contract. 
 
 againfl the underwriters upon that claufe of the 
 policy. 
 
 9. Before flating thefe decifions now menti- 
 oned, however, it is deferving of notice, that a 
 diflindion may be made between an aflured 
 who is merely a Jhipper of goods ^ and one who is 
 freighter of the fhip. The former is a perfon 
 
 who, along with other merchants, entrufts his 
 merchandifes on board a particular fhip, and pays 
 a freight to the owner for their carriage. When a 
 velTel is, in this manner, loaded by a number of 
 different merchants, Ihe is called 2. general Jhip. 
 But "Si freighter is a perfon who hires, by charter- 
 party, the whole Ihip, for any particular adven- 
 ture, and either fills it entirely with his own 
 goods, or takes in a cargo on freight from differ- 
 ent merchants. The /r^z^/j/^r appoints, oratleafl 
 approves of the captain, and fuperintends the 
 whole adventure ; and he may not improperly 
 be confidered as a temporary owner of the 
 fhip. 
 
 10. In cafes of barratry it is not neceffary 
 for the affured to fliow that the barratry a6lu- 
 ally was the caufe of the fhip's lofs. It is fuf- 
 ficient, if there have been a barratry and a fub- 
 fequent lofs ; and that the one might have been 
 the caufe of the other. For when one party is 
 guilty of a breach of agreement, and a damage 
 enfues, the burden of proof, that the failure 
 was not the caufe of the lofs, mufl lie on him 
 who is in the fault. 
 
 Having
 
 Effect of a Clause of Barratry. 169 
 
 Having premifed thcfe obfervation, it remains 
 to Hate two cafes which illuftrate the whole fub- 
 ject of barratiy. 
 
 Valleio and Echalai v. Wheeler. 
 
 On a trial at Gaildhall, before Mr Jujlicc 
 AsHURST, and a fpecial jury, the material fads 
 of the cafe appeared to be as follows. 
 
 The fliip Thomas and Matthew, Brown mailer, 
 was infured ** from London to Seville," and the 
 policy undertook againlt barratry. She was a 
 general fhip from London to Seville ; belonged 
 to WilleSy as owner of the hulk, but was charter- 
 ed by Darwin for the voyage. 
 
 She failed to Guernfey, out of the road to 
 Seville, and there took in brandy, in evafion of 
 the duties. Afterwards fell into a ftorm, was 
 much damaged, and driven back to Dartmouth. 
 Then was refitted ; but, in failing, was fo much 
 farther damaged as to be incapable of continu- 
 ing her courfe, and put in at Helford. The 
 Ihip was not confifcated on account of the con- 
 traband goods ; but in confequence of the da- 
 mage fhe had fuffered, the goods were fpoiled. 
 
 The plaintiffs, who were Jhippers of goods, 
 brought their acflion to recover againft the un- 
 derwriters ; and the jury found a verdid: for the 
 plaintiffs agreeably to the diredion of the 
 Court ; they found, " that the voyage to Guern- 
 fey was with the knowledge of WiUes, but without 
 the knowledge of Darwin*'' 
 
 Y Motion
 
 170 Nature of an Insurance Contract. 
 
 Motion for a new trial, on two grounds, that 
 Willes was acceflbry to the voyage to Guernfey, 
 and there can be no barratry with confent of the 
 owner ; and that the barratry was not the caufe 
 of the lofs. 
 
 Lord Mansfield. Of the common law cafes 
 with refped to barratry, that of Sta?nma v. Brown, 
 is in point ; where it was found there was no 
 barratry in the mailer changing the line of 
 voyage, not for his own benefit, but that of his 
 owners. 
 
 Undoubtedly where the aflured owner or 
 freighter is acceflbry to the barratry, he cannot 
 complain of it. But here Willes, though owner 
 of the hulk, who was acceflbry, is not concern- 
 ed. It is Darwin, who having freighted the 
 whole fhip for his fole ufe, is to be confidered 
 as the owner ; and the queftion mull be with 
 regard to the acceffion of Darwin j or whether 
 there was a fraud to his prejudice. 
 
 The mafl:er goes upon an iniquitous voyage, 
 which is a fraud upon Darwin. And whether 
 the lofs happened during the fraudulent voyage 
 or after, is immaterial. But it certainly hap- 
 pened in confequence of the barratry. If there 
 had been no infurance againll barratry, this 
 confequential lofs Vv^ould have liberated the in- 
 furers, as a deviation. 
 
 Aston J. Barratry means fraud by the fo- 
 reign ordinances. Doubtlefs where the mafter 
 is ading not for his own advantage, but the be- 
 nefit
 
 Effect of a Claus^^ of Barratry. 171 
 
 yrefit of his owners y or with their confent^ he is not 
 guilty of barratry. But here though Willes is 
 the nominal, Darwin is the real owner, pro hac 
 ^ice ', and this is barratry, being for an illegal pur - 
 pofe, without the confent of the temporary own- 
 er ; and being a criminal aEl. There is no fay- 
 ing here at what time the mifchief was occafion- 
 ed ; and the infurers are liable for the confequential , 
 lofs, although not diredlly or neceffarily confe- 
 quent on the deviation. 
 
 Willes J. This is barratry ; becaufe Dar- 
 win was the freighter ; and a deviation like the 
 prefent, for a bad purpofe, if without the know- 
 ledge of the freighter^ is the fame as if done 
 without the knowledge of the owner. The only 
 quellion here is, Whether this was a lofs by 
 the a6l of barratry ? It might not have hap- 
 pened but for the barratry. 
 
 AsHURST J. was of the fame opinion. Com- 
 pare Cooper'' s Reports, p, 143. with Loftus^s Re- 
 ports, 631. 
 
 NuTT and others, AJlgnees, is'c. of Hague, a 
 bankrupt, againfl Bourdieu. 
 
 This was an adlion on a policy of infurance, 
 
 made by Hague before he became a bankrupt, 
 
 en goods laden, or to be laden in the lliip Ra- 
 
 chette, (or Bellona) for a voyage from London to 
 
 Rochelle ; fubfcribed by the defendant on 27th 
 
 October 1769. 
 
 The
 
 172 Nature of an Insurance Contract. 
 
 The jury found a verdidt fubjed to the opini- 
 on of the Court, of which the following are the 
 material fads. 
 
 In Odlober 1769, Jofeph Le Grand, one of the 
 partners of a mercantile houfe at Rochelle, 
 being in London, with the fhip Bellona, and in 
 want of money to make up a cargo, applied to 
 MefTrs Hague ; who fupplied him with goods to 
 the amount of L. 1 800. But as the Meflrs 
 Hague were not fufficiently acquainted with the 
 houfe of Le Grand, to entrufl them with mer- 
 chandizes to fuch an extent without a fecurity, 
 a contracfl was therefore entered into, between 
 the Hagues, and Jofeph Le Grand, and Rene 
 Guine the captain, whereby it was agreed that 
 the bills of loading Ihould not be delivered at 
 London but at Rochelle, upon payment of the 
 price in good bills, and of all charges and ex- 
 pences. And, in default, it was exprefsly agreed, 
 that the faid merchandizes were to be received 
 for account of the MeiTrs Hague, by the bearer 
 of their orders, free of freight and charges, for 
 which Captain Rene Guifie was to have recourfe 
 againft the Le Grands only. 
 
 Captain Rene Guine accordingly delivered the 
 bills of loading to Hague, v^ho forwarded them, 
 with the contract, and inftructions to Mr Rod- 
 rique his correfpondent at Rochelle. 
 
 When Guine arrived at Rochelle harbour, in- 
 ilead of entering the port, he call anchor before 
 St Martin du Rhe ; and Le Grand being put on 
 
 fliore.
 
 Effect of a Clause of Barratry. 173 
 
 fliore, got privately into the city ; and having 
 confulted with his partners how to render Mr 
 Hague^s precautions ineffectual, he got Rejis 
 Guhie the captain to fign new and fraudulent 
 bills of loading, by which, inftead of being con- 
 fined to land the goods at Rochdle^ he was allow- 
 ed a liberty of going either to RocbeUe or Bour- 
 deaux. The fhip was accordingly carried to 
 Bourdeaux, and there Rene Guine contrived to 
 land the goods, in the hands of Le Grand^s 
 agents. 
 
 It is unnecefTary to mention the ileps taken by 
 Rodrique, to procure indemnification to Hague, 
 his correlpondent. At laft, upon a petition fta- 
 ting the fads, prefented to the Lieutenant of the 
 Admiralty of Guien?ie, Captain Rene Gmne was 
 found " guilty of barratry of the majler, for 
 " having figned falfe bills of loading," and Le 
 Grand " of having been an infligator and accom- 
 " plice of the captain ;" andbefides being found 
 liable in indemnification to Hague, they were 
 both condemned to the galleys. 
 
 The jury particularly found, ** That the cap- 
 " tain, by the injligation arid direction of Meffrs 
 " Le Grand, the owners of the pip, went with the 
 *' iliip and cargo to Bourdeaux inflead of Ro- 
 " chelle, where the cargo was fold by the agent 
 *' oi Le Grand:' 
 
 For the plaintiffs it was contended, That the 
 fraud of the mafter here amounted to barratry. 
 Barratry is defined, fraus, dolus, Molloy con- 
 fide rs
 
 174 Nature of an Insurance Contract. 
 
 fiders malpradtices againft the cargo as barra- 
 try. " It is where the mailer or mariners cheat 
 '^ the owners or infurers, by running away with 
 " the fhip, or embezzling the cargo.'''' Pojllethw. 
 Lord Mansfield, in Valleio v. Wheeler, faid, 
 *' Whatfoever by the mafter is a cheat, a fraud, 
 " a cozening, a trick, is barratry in him." — " No- 
 ** thing could be fo generaV 
 
 It makes no difference here, that Le Grand 
 was on board. For he had, by the contract, 
 parted with his intereft in the Ihip for that 
 voyage. No exprefs charter-party is neceffary 
 to transfer the ownerjhip of a veflel, fo far as re- 
 fpedls the infurance ; it is fufficient, that Ihe be 
 not ^general fliip, but let to a Jingle perfon only. 
 In Valleio v. Wheeler, it was found fufficient 
 that the freighter was fole occupier of the veffel 
 for the voyage. 
 
 The Court of Admiralty in Guienne had found 
 this to be " barratry of the mailer ;" and the 
 circumllance of the owner being accelTory, does 
 not diminilh the mailer's criminality. 
 
 For the defendant, it was urged. The con- 
 ftrudion of barratry in France is very different 
 from what it is in England, In France, any ne- 
 glect of the mailer is barratry ; but in England, 
 there mull be fomething criminal. Valines^ 
 dates two cafes, in which the alTured cannot re- 
 cover 
 
 » Valines, ii. So.
 
 Effect of a Clause of Barratry. 175 
 
 cover for barratry ; where the owner himfelf 
 ads as mailer ; and where the mailer himfelf is 
 the aiTured. 
 
 According to the Englifli lignification of har- 
 ratry, it muil be committed againjl the owners. 
 It is faid, that Hague is owner pro hacvut ; but 
 the lail words of the agreement are deciiive 
 againil fuch a conilrudion ; for it was a condi- 
 tional fale of the cargo to the Le Grands, and, 
 in default of their paying for it, in the ilipula- 
 ted manner, Hague was to pay no freight or 
 charges, but the captain was to have his reme- 
 dy againil Le Grarid alone. So that Hague had 
 merely the ufe of the Ihip, and not the dirediofi 
 of her. In Valleio v. Wheeler^ the veiTel was 
 chartered to a Jingle per/on^ who was therefore 
 owner for the voyage ; but this was merely an 
 undertaking to carry Hague^s goods to Rochelle. 
 
 According to the dodrine in Stamina and 
 Brown^ when a merchant has fhipped goods on 
 board a general JJAp^ and the captain has devi- 
 ated with the confent of the owners of the fhip, 
 that was held not to be barratry, fo as to entitle 
 the owner of the goods to recover againil the 
 underwriter. In 2. Chan. caf. 238. it is held, 
 that the owner of the ihip is not liable for the 
 barratry of the mailer ; for which reaibn barra- 
 try is infured againil, but deviation is not. In 
 barratry the captain muil commit a fraud upon 
 his owner ; but if the owner be guilty, it then 
 
 ceafes
 
 176 Nature of an Insurance Contract. 
 
 ceafes to be barratry, and becomes fome other 
 crime, for which he is anfwerable to the party 
 injured. There was no relation between the 
 mafter and the fhipper. The former a6ted un- 
 der the diredlion of the owner of the vejfel, and 
 therefore cannot be faid to be guilty of a fraud 
 againll him ; in which cafe only an infurer can 
 be liable as for barratry. For all fpecies of 
 embezzlements by the mafter or mariners to a 
 certain amount, the owner of the fhip is liable, 
 by 7. Geo. II. c. 15. a; fortiori, if he himfelf is 
 confenting to them ; and the underwriter is only 
 anfwerable for thofe atls of fraud for which the 
 owner is net ; but where goods are loft or fpoil- 
 ed bv the default of the mafter. the owner is 
 liable in refpedl of the freight , Bofo7i v* Sand- 
 ford and others, Salk, 440. In the cafe of Lewen 
 and Suqffb, Lord Hardwicke faid, " Barratry 
 " is an Q.^ of wrong done by the mafter againft 
 " thejbip and goods." 
 
 Lord Mansfield faid, — the judgment of the 
 Court in Guienne is entirely out of the queftion. 
 Their notions of barratry are evidently different 
 from ours ; for they find the owner himfelf 
 guilty of barratry. 
 
 The provifion againft barratry is a very extra- 
 ordinary one. It is ftrange that it fhould have 
 crept into our policies, and much more fo, that 
 it ftiould have continued in them fo long ; that 
 the underwriter fliould infure the condu6t of 
 
 the
 
 Effect of a Clause of Barratry. 177 
 
 the captain, (whom he does not appoint and can-t 
 not dilmifs,) to the owner who can do either. 
 
 Barratry, in the Englifh fenfe, can only be 
 committed againft the owners of the fhip : For 
 barratry is fomething contrary to the duty of 
 the majier and mariners ; the very terms of which 
 imply that it mull be in the relation in which 
 they {land to the owners ofthefiip. The words 
 ufed are " majler and mariners ^'^ which are very 
 particular. An owner cannot commit barratry ; 
 he may make himfelf liable by his fraudulent 
 condud to the owner of the goods, but not as 
 for barratry. And, belides, barratry cannot be 
 committed againft the owner with his confent : 
 For though the owner may, if he confents, be- 
 come liable for a civil lofs, by the milbehavi- 
 our of the captain, yet that is not barratry. 
 Barratry muft partake of fomething criminal^ 
 and muft be committed againft the owner, by 
 the mailer or mariners. In the cafe of Valleio 
 v. Wheeler, the Court took it for granted that 
 barratry could only be committed againft the 
 owner of the fhip. The point is clear. 
 
 Judgment unanimoully for the defendant, 
 
 'Tennly Reports. Trin. 1786 * . 
 
 •^ . Z The 
 
 * It is imagined the doftrine delivered in thefe two cafes, 
 muft appear folid. Vor fraud with the owner's confent or 
 barratry of the owner, if the phrafe may be allowed, implies 
 not only a deviation, but an alteration of the voyage. Vic 
 rijTi undertaken never commences, but the adventure is dif- 
 ferent from the beginning;. This phafis of the queftion 
 fliall be confidf red more fully afterwards.
 
 178 Nature of an Insurance Contract. 
 
 The fadls of the following cafe are not cal- 
 culated to illuftrate any principle, except this, 
 which requires no illullration, that a man can- 
 not take advantage of his own fraud ; and that if 
 the captain of a fhip procures infurance, neither 
 he nor his affigns can have adion againft the 
 underwriters, on the claufe of barratry. The 
 expreflion and reafoning of the cafe, however, 
 fupport the fame polition with Nutt v. Bour- 
 dieu, 
 
 Lewen v, Swasso. 
 
 The plaintiff Lewen being fued at law upon a 
 policy of infurance "on a JIj'ip, and againft the 
 " barratry of the mafter," brought his bill in 
 Chancery to be relieved, and for an injunclion, 
 charging that one Matthews the majler, and alfo 
 owner of the Ihip, had, before the voyage, enter- 
 ed into a bottomry bond to Swaffo, the defendant, 
 for L. 200 ; and that afterwards, by bill of fale, 
 he affigned over his intereft in the lliip to the 
 defendant as a fecurity for this L. 200 ; and the 
 plaintiff iniifted that Matthews was neverthelefs, 
 in equity, to be confidered as owner of the fhip, 
 though in law the ownerftiip and property would 
 be looked upon to be in the defendant ; and 
 that the owner of a fhip could not either in law 
 or equity, be guilty of a barratry concerning the 
 fhip, and therefore prayed an injunction, and 
 that the policy might be delivered up. The voy- 
 age infured was from London to Marfeilles, and 
 
 from
 
 Effect of a Clause of Barratry. 179 
 
 from thence to fome port in Holland. The cafe 
 was, that the mafter failed with the Ihip to Mar- 
 feilles, and then, inftead of purfuing his voyage, 
 failed to the Weft Indies, and there fold the 
 (hip, and died infolvent. I'hefe matters being 
 confeffed by the anfwcr, an injunction was 
 moved for on the principle, that a mortgager is 
 to be confidered in equity as owner of the thing 
 mortgaged ; and that Matthews, the mafter, he- 
 hig owner, could not be guilty of barratry. Lord 
 Hardwick Chancellor, granted the injunction. 
 Dicl. Tr. and Com. 147. 16. Geo. II. 
 
 This judgment, it fhould feem, muft have 
 been well founded, although Matthews, the 
 mafter, had not been owner. It was enough 
 that he was the ajfured. For it is evident a 
 fhipmafter cannot infure againft his own barra- 
 try ; and the policy being fo far void with re- 
 fpedt to the original party, could not acquire 
 validity by any affignment of the intereft to 
 Swqjfo the defendant. 
 
 II. Before leaving the different proviiions that 
 have been adopted to fecurc the aifured againft 
 the mifdemeanour of mafter and crew, one point 
 yet remains deferving confideration. It has 
 .been fhewn, that the claufe againft barratry im- 
 plies fomething criminal; it therefore does not 
 include mere fault, negligence, ignorance, or any 
 thing that does not fuppofe diponeft intention. Is 
 there, in a Briti/?j policy, any provifion what- 
 ever againft mere fault j and is the underwriter 
 
 liable
 
 i8o Nature of an Insurance Contract. 
 
 liable for lofs arifing from the negligence of maf- 
 ter and crew ? 
 
 The following cafe occurred lately in Scot- 
 land. A mercantile houfe in Greenock got infu- 
 rance on their velTel bound to Charlejlown. In 
 an adtion on the policy, among a variety of de- 
 fences, the underwriters ilated the following •, 
 That from the affiired owners having overloaded 
 their veffel, or, from her naturally drawing too 
 much water, the captain had found it impoffible 
 to clear a har at the entrance of Charlejlown 
 harbour. That the agents of the aiiured at 
 Charleftown had made application to the 
 captain, to unload the cargo, in order to 
 lighten the fhip ; but he refufed, and perfift- 
 ed unreafonably in waiting for a fpring tide ; 
 he continued without the harbour, expofed to 
 accidental ftorms ; in one of which, and while 
 attempting to clear the har^ the veffel was over- 
 fet and loft. That the lofs here was occaiioned 
 by the obftinacy and grofs fault of the captain, 
 for which the underwriters are not refponiible. 
 
 It muft have depended on the evidence, whe- 
 ther, in this cafe, the captain had been guilty 
 of mifcondudt or not ; and in what degree. But 
 the queftion never went to proof, having been 
 fettled by private agreement before the point of 
 law was decided. 
 
 Whether or not the underwriter be in Britain, 
 liable for mere negligence^ is a queftion, upon 
 which there do not appear to be any exprefs de- 
 
 cifions ;
 
 Loss FROM Negligence of Master, ^r. i8i 
 
 cilions ; and, although, from the whole general 
 reafonings hitherto ftated, a negative conclulion 
 feems to follow, yet there is lb little uniformity 
 of opinion upon the point, either among lawyers, 
 or merchants, that it will not be confidered in 
 the light of a digreflion to (late a few reiiedions 
 that have occurred on both fides, and which 
 weve principally fuggelted by the pleadings in 
 the cafe above quoted. 
 
 Upon the part of the alTured, it might be con- 
 tended : 
 
 " Underwriters mult undoubtedly be held 
 to fubject themfelves to the confequences of 
 the mafter^s fault or n€glige7ice', for they ex- 
 prefsly take upon themfelves his fraud or barra- 
 try. But the obligation to be liable for another 
 man's /r«z/^, is a greater and more extraordinary 
 obligation, than to be fubjeded to the confe- 
 quences of his fault or negligence. Moll men 
 would feel more reludance to come under the 
 former obligation than the latter. When a per- 
 fon, therefore, has exprefsly fubjedled himfelf to 
 the confequences o? fraud, he may be conftrued 
 as intending to bear alfo the confequences of ne- 
 gligence. In the greater obligation, the fmaller 
 is implied*." 
 
 *' But, in ordinary policies, the underwriter 
 exprefsly takes upon himfelf, not only barratry, 
 
 but 
 
 * In Knight v. Cambridge, the aft of barratry w^s /ai/ing 
 without paying fiori-duiics. In Val/eio v. Wheeler, (as ftated 
 in Cooper,^ this is imputed to crajfa negUgentia. But it ra- 
 ther a fFords a pre flimption oi fraud.
 
 i82 Nature of an Insurance Contract. 
 
 but certain kinds of faulty negligence. It is 
 ufuallj exprelTed, that he becomes liable for the 
 perils of " fire," and of *' furprizal." The ac- 
 cident of fire fuppofes fault fomewhere \ and 
 there could be no furprizal without negligence. 
 Belides the enumeration of particular perils, every 
 policy contains a general claufe, by which the 
 underwriter fubjeds himfelf to " all other perils ^ 
 lojfes, and misfortunes^ which can any way hap- 
 pen" to the fubjeft infured. This claufe, which 
 is exprefled as comprehenlively as poffible, mull 
 at leaft include all perils of the fame kind with 
 thofe fpecially enumerated. And as fire and 
 furprizal are mentioned, the general claufe muft 
 include all other fpecies oi faulty negligence.'^'* 
 
 *' But to what endlefs cavils and litigation 
 would it open a door, if the mailer's negledls 
 fhould be fuftained to liberate the infurer I In 
 the conducl of a maritime adventure, it is often 
 impoffible to dillinguilh the degrees of fault, 
 or to draw the line between fault and mere ac- 
 cident. How many inllances may be figured ! 
 In the cafe of 2ifhipwreck, it might be faid, that 
 the crew fhould have followed this or that mea- 
 fure ; lain upon one tack or another ; furled this 
 or that fail; thrown out this or that anchor; 
 and ufed every precaution but what was taken. 
 In the cafe of capture-^ the crew and mailer 
 fhould have been more active ; they fliould have 
 fought a longer battle, or run away fooner. And 
 the difficulty of forming a judgment of thefe 
 matters, is apparent from the variety of oppofite 
 
 opinions
 
 Loss FROM Negligence of Master, ^t. 183 
 
 opinions that were formed in the courfe of the 
 late war, with regard to the condudl of naval 
 officers ; and the oppofite, and inconfiftent evi- 
 dence which was produced on different lides. 
 The point, what degree of fault fhall be fuffi- 
 cient, does not admit of general rules ; and cavils 
 with regard to it muft become perfe(5lly endlefs. 
 No inftance of lofs could occur, where there 
 might not be room for difpute and litigation, 
 upon the pretence of faulty negligence in the 
 mailer or crew ; and the proof, in fuch cafes, 
 would be inextricable." 
 
 '* Accordingly, mercantile people feem to be 
 agreed in rejed:ing a defence of this nature againft 
 the claim of the aflured. How many inllances 
 of fuch negligence mull be daily occurring, and 
 yet there is no example of this defence having 
 been ever ftated to the claim of the alTured. In 
 the courfe of the laft war, a captain, from inat- 
 tention, ignorance, or drunkennefs, was fo out 
 in his bearings, as to miftake the coaft of France 
 for that of England, and was captured accord- 
 ingly ; and the underwriters in Scotland, paid 
 the lofs." 
 
 On the other hand, it may be argued in be- 
 half of the underwriter : 
 
 " Very little doubt can be entertained, that an 
 infurer is not refponfible for any mifdemeanour 
 whatever, of mafter or crew, without fome ex- 
 prefs claufe to that effedl. For every mifdemea- 
 nour carries along with it a breach of the exprefs 
 
 or
 
 184 Nature of an Insurance Contract. 
 
 or implied terms of the agreement ; and to faj, 
 that an infurer is not naturally liable for mifde- 
 meanours, is faying no more than that he is not 
 liable beyond the terms of his contrad. It is 
 clear from a variety of adjudged cafes, that the 
 exprefs claufe of barratry does not include 7iegli- 
 gence or fault ; for " in order to barratry^ " there 
 muil be fomething criminal.'''' Strange'' s Reports j 
 1 173. There is no proviiion, therefore, exprefs 
 or implied, againft mGVQfault/m a Britilh policy." 
 ** It is a great miftake to fuppofe, that the de- 
 fence of mti-e fault of the mafter, has not often 
 been reforted to againft an adion upon the poli- 
 cy. On the contrary, it is every day fuftained, 
 wherever the infurer pleads deviation, A de- 
 viation from the line of voyage marked out by 
 the contradt, contrary to inftrudtions, muft im- 
 ply either fault or fraud in the mafter and 
 crew. For if a change of meafures be necef- 
 fary or expedient for the concern, it is, as 
 fhall be afterwards ftiewn, no deviation. But a 
 fraudulent departure from the policy is barra- 
 try, and fubjedts the infurers ; a faulty depar- 
 ture, or a deviation, is daily fuftained to free them 
 from obligation. What renders this argument 
 perfedlly conclufive, is, that in Holland, where 
 tile infurer exprefsly undertakes both fraud and 
 negligence of the mafter and crew, a deviation by 
 the mafter, without the acceffion of his owners, 
 is no defence againft an adlion on the policy ; 
 and the underwriter muft bear the confequences- 
 
 of
 
 Loss FROM Negligence of Master, ^c. 185 
 
 of 2i faulty as well as of a criminal breach of in- 
 ftrudions *." / 
 
 '* There is another cafe, in which it is univer- 
 fally admitted, that the infurer is not liable for 
 lofs ariiing from faulty negligence, viz. where 
 the mafter is guilty of fault in ihtjlowage of the 
 cai'go\. Now it will be difficult to fhow how 
 negligence with refpeft to the ftowage of goods 
 ditFers from any other fpecies of negledl." 
 
 *' There are feveral cafes adjudged, which, 
 though not exprefs upon the point, are highly 
 favourable to the fame opinion." 
 
 *' In the cafe, Waples v. Eames, formerly Ha- 
 ted, a lofs had arifen from the vefTel being obli- 
 ged to perform quarantine. Among other rea- 
 fons for finding a verdict in favour of the af- 
 fured, it was ilated by Lee, C. J. that " there 
 *' was no default in mailer or owners." 
 
 A a ''In 
 
 * See Bynkerfi. ^ Jur. Priv. I. 4. c. 8. et pajfim, 
 f " Si le maiftre du navire," fays the Guidon, ch. 5. § 9. 
 " charge marchandizes incompatibles j comme fi, au bas, 
 " fous le premier tillac, il y avoit raifins, alum, figues, ris, 
 " grains, fel, ou autres (emblables denrees : et entre deux 
 " tillacs, au deffbus du premier, il charge viiis, huiles, 
 ** olives, ou autre marchandizes qui coule, et que, par lef^ 
 " dits coulages, la marchandize has fut gaftee, appretiation 
 ** fera fait du damage, lequel tombera fur le maiitre, fans 
 *' que I'affureur y contribue.'-' See to the fame effed, 
 Ord. of Antwerp. — We/ket (1', commodity.) And the fo- 
 reign commentators, paJfim.
 
 1 86 Nature of an Insurance Contract. 
 
 " In the cafe, Mills v. Fletcher, where the 
 quellion was, whether the afTured were entitled 
 to claim for a total lofs, the defendant pleaded, 
 that the lofs had become total by the improper 
 conduct of the captain ; and Lord Mansfield, 
 in direding a verdicl for the plaintiff, was at 
 pains to refute this charge." 
 
 But the following recent cafe feems to be 
 more in point than any we have yet feen. 
 
 Gregson i;. Gilbert. 
 
 Gilbert infured Gregfon upon flaves, from 
 Guinea to Jamaica. The lliip, in the courfe 
 of her voyage, had miffed the Illand of Jamaica, 
 and being reduced to great diftrefs for water, it 
 was found neceffary to throw fome of the flaves 
 overboard. When this refolution was taken by 
 the captain and crew, there remained but one 
 day's allowance of water, at two quarts per 
 man. 
 
 Gregfon brought an adion for the lofs ; and 
 his declaration ftated, " That by perils of the 
 " fea, contrary winds, currents, and other mif- 
 fortunes, the voyage was fo much retarded, 
 " that a fufficient quantity of water did not re- 
 main for the fupport of the flaves, and other 
 ** people on board, and that certain of the 
 " flaves, mentioned in the declaration, periflied 
 *' for want of water." The jury found a ver- 
 did for the plaintiff. 
 
 Motion 
 
 a 
 
 ti
 
 Loss FROM Negligence of Master, &c. 1S.7 
 
 Motion for a new trial, upon the footing that 
 this was not a lofs by perils of the fea, as ftated 
 in the declaration, but by the captain's mii- 
 take. 
 
 The Court were unanimous, that the decla- 
 ration ought to fet forth truly the peril which 
 was the caufe of the lofs : And they made the 
 rule for a new trial abfolute ; from which it 
 feems to follow, that they confidered a lofs by 
 the 77ii/iake o{ the captain, as not included under 
 the general provifion againll perils of the fea. 
 B. R. Eafter 23. Geo. III. xM. S. 
 
 It is impoffible to dilpute, thoit fault is a mat- 
 ter of degree, and that it cannot eafily be redu- 
 ced to general rules, but muft, in every particu- 
 lar cafe, reft in the breaft of a jury. But the 
 fame thing holds with regard to every action of 
 damages ob damnum culpa datum ; yet there is no 
 doubt, that an action will lie on account of da- 
 mages fuftained by a certain degree of grofs 
 negligence. The fame degree of fault, which 
 is fuftained to fubject a fhipmafter, or his em- 
 ployer, in damages to the party who fufters by 
 his mifcondudl, ought, perhaps, to liberate the 
 underwriter from lofs ; and the principles which 
 ferve to fix the one, appear fufficiently accurate 
 to determine the other. 
 
 *' It is, no doubt, the want of general rules, 
 joined to the difficulty of proof, that have 
 prevented this defence from being more fre- 
 quently ftarted. Grofs fault depends, in gene- 
 ral,
 
 l88 Nature of an Insurance Contract. 
 
 ral, upon complicated circumftances, of diffi- 
 cult iaveftigation ; and the amount of which, 
 when proved, in the breall of a judge or jury, is 
 fluduating and precarious. As to the two perils 
 oi fire and piirprifal^ which are exprefsly under- 
 taken, they do not neceflkrily imply fuch a de- 
 gree oi fault as deferves notice ; and they do not 
 feem intended to mark out any particular clafs 
 of dangers, different from the ordinary perils of 
 feas or capture." 
 
 12. There is another queftion w4th regard 
 to the nature of the infurer''s rijk^ a good deal 
 different from any that has hitherto been ftated. 
 It relates to the degree of connexion, which 
 mull take place between the accident and the lofs, 
 whether confidered as caufe and effed of each 
 other, or in refpe6l of nearnefs of time. The 
 lofj mull be a direSl not a remote confequence of 
 the accident provided for \ it muff be an imme- 
 diate effed of the caufe ; and it mull happen 
 within a certain period of time. 
 
 As to the firll of thefe points, the connedion 
 which mult fubfiil between the accident and the 
 lofs as caufe and effecl, it admits of no accurate 
 rule. The one muil be a direct confequence of 
 the other : But in what degree, mull refl in the 
 breall of a jury in every particular cafe. In- 
 flead, therefore, of attempting any general rules 
 it will be more ufeful to Ihow, by examples, 
 what loffes have been held to be remote, 'dn^ 
 what immediate. 
 
 Jones
 
 
 Connection of the Accident and Loss. 189 
 Jones againjl Schmoll. 
 
 This was an adlion on a policy of infurance, 
 *' At and from Briftol to the coaft of Africa, du- 
 *' ring the flay and trade there, and from thence 
 *' to ports of difcharge in the Weil Indies." 
 There was a memorandum on the policy. " The 
 " afiurers are not to pay any lofs that may hap- 
 pen in boats during the voyage, (mortality of 
 negroes by natural death excepted,) and not 
 ** to pay for mortality by mutiny^ inilefs the fame 
 " amount to 10 per cent, to be computed on the 
 ** firft coft of the Ihip, outfit and cargo, valuing 
 " negroes fo loft at L. },$ per head." 
 
 The demand upon the policy was for the lofs 
 of a great many llaves by mutiny. 
 
 The evidence of the captain was, that he had 
 {hipped 225 prime flaves on board : That on 
 the 3d May, before he failed from the coaft of 
 Africa, an infurredlion was attempted ; the wo- 
 men had feized him on the quarter-deck, and 
 attempted to throw him overboard ; but he was 
 refcued by the crew ; upon which the women 
 and fome men threw themfelves down the hatch- 
 way, and were much bruifed. That he fent the 
 ringleader on (hore ; that twelve men and a wo- 
 man afterwards died of thofe bruifes, and from 
 abftinence. On the 22d May there was a gene- 
 ral infurreclion ; it was a cafe of imminent ne- 
 ceffity, and the crew were forced to fire upon 
 the flaves, and attack them with weapons. Seve- 
 ral flaves took to the fliip's fides, and hung down 
 
 in
 
 190 Nature of an Insurance Contract. 
 
 in the water hy the chains and ropes, fome for 
 about a quarter of an hour ; three were killed 
 by firing, and three were drowned, the reft were 
 taken in, but they were too far gone to be reco- 
 vered J many of them were defperately bruifed ; 
 many died in confequence of the wounds they 
 had received from the firing during the mutiny, 
 fome from fwallowing fait water, fome from 
 chagrin at their difappointment, and from abfti- 
 nence ; feveral of fluxes and fevers ; in all to the 
 number of 55. 
 
 The underwriters had paid for nineteen, who 
 were either killed in the mutiny, or died of 
 their wounds. 
 
 For the plaintiff, it was contended, that though 
 the reft did not a6lually die in the mutiny, or 
 from any wounds received at that time, yet they 
 had all died in confequence of the mutiny ; for if 
 there had been no mutiny, nothing of the kind 
 would have happened ; and on this ground the 
 infurer ought to be liable. 
 
 Another confequential lofs was ftated, that 
 the very circumftance of there having been a 
 mutiny amongft the remaining llaves, had fo 
 far lelTened their value in the eftimation of the 
 planters, that they were fold at L. 17 a-head 
 lefs than they would otherwife have done ; and 
 on this circumftance alfo, the plaintiff ought to 
 recover. 
 
 Lord Mansfield. — I think not.— The un- 
 derwriter is not anfwerable for the lofs of the 
 market, nor the price of it. That is a remote 
 
 confequence
 
 Connection of the Accident and Loss. 191 
 
 confequence, and not within any peril infured 
 by the policy. 
 
 It is a queftion for the jury, how many of the 
 negroes that died are within the provilion of the 
 policy, with refpedt to " mortality by mutiny :" 
 They may be claflTed as follows : 
 
 I/?, The firft clafs certainly comes within 
 the meaning of the policy, of mortality by mu- 
 tiny. Such as were killed in the fray. 
 
 id. So do thofe who died of their wounds. 
 
 3^, Another clafs as clearly do not. Such as 
 being baffled in their attempts, in defpair, chofe 
 a mode of death by falling, or died by defpond- 
 ency. That is not a mortality by mutiny, but 
 by failure of mutiny. 
 
 4?Z7, The great clafs are fuch as received fome 
 hurt by the mutiny, but not mortal, and died 
 afterwards of other caufes, as thofe who fwallow- 
 ed water, jumped overboard, ^c. &c. This is 
 the great point. 
 
 Verdicl:. That all the Haves who died of their 
 wounds, were to be paid for. 
 
 That all who had died of their bruifes, or 
 wounds which they had received in the mutiny, 
 though accompanied with other caufes, were to 
 be paid for. 
 
 That all who had fwallowed fait water, or 
 ieaped into the fea, and hung upon the fides of 
 the fhip, without being otherwife bruiied, or 
 who died of chagrin, were not to be paid for. 
 Sin, after Trin. 1785, ai? Guildh. Termly Report ^^ 
 
 Ccolledcd
 
 192 Nature of an Insurance Contract. 
 
 (colleded in the note to Robertfon v. Ewer, HiU 
 1786.) 
 
 Robertson againfi Ewer. 
 
 The fhip Dumfries was infured by the defend- 
 ant " from London to the coaft of Africa ; du- 
 ring her ftay and trade there, and at and from 
 thence, to her port or ports of difcharge in the 
 Britifli Weft India Iflands." — *' Free of average 
 under 3 per cent.''* 
 
 She failed on her voyage to the coaft of Afri- 
 ca, there took in a cargo of flaves, and proceed- 
 ed to the Ifland of Barbadoes, where ftie arrived 
 on the 18th December 178 1. An embargo had 
 previoufly been laid on all fhipping by Lord 
 Hood, the commander in chief upon that fta- 
 tion. Notwithftanding this, the captain of the 
 Dumfries attempted to fail on 21ft December 
 1 78 1, but was prevented. He applied for per- 
 miftion to fail, which being refufed, he, a few 
 days after, failed without leave, and was pur- 
 fued and brought back by a floop of war, after 
 a flight eng-agement, in which the damage was 
 lefs than 3 per cent. 
 
 Upon her return, Lord Hood ordered all her 
 men to be difperfed among his Majefty's fliips of 
 war. The embargo continued till the 7th Ja- 
 nuary 1782. On the 2 2d of the fam.e month, 
 the fmall-pox broke out among the negroes, who 
 were all obliged to be put afliore. In confe- 
 quence of which, and for want of mariners, Ihe 
 
 was
 
 Connection of the x-Vccident and Loss. 193 
 
 was detained at Earbadoes above two months af- 
 ter the embargo was taken off. 
 
 This action was brought to recover the a- 
 moLint of wages and provifions, in confeqacnce 
 of the detention under the embargo at Barba- 
 does. Mr J. Buller, before whom it was tried, 
 was of opinion, that this policy being on the 
 body of the Jhip, and the average lofs thereon 
 being lefs than 3 per cent, the plaintitF could not 
 recover, and he was nonfuited. 
 
 In fupport of a rule for a new trial, it was 
 argued, 
 
 \ft, That this was a lofs by " arreft, reftraint, 
 and detainment." Suppofe the embargo had 
 lafted longer, till the fhip was worm-eaten, the 
 alTured could have ahandoned her, and reco- 
 vered a total lofs. In Gofs v. Withers, Lord 
 Mansfield faid, " by the general law, the 
 " infured may abandon in the cafe merely of an 
 ** arreft or embargo by a Prince, who is not an 
 *' enemy." Upon the fame principles, he may 
 recover here, where the lofs is partial. 
 
 idly. This is a lofs by barratry of the majter. 
 The barratry of the mafter, in refifting a lawful 
 embargo, had occafioned the difperfion of the 
 crew, and the confequent delay. 
 
 The damage need not be an immediate one to 
 the ihip. It is fufficient to charge the under- 
 writer, if it is a confequence of the peril infured 
 againft. Where the aifured incurs a ranfom or a 
 falvage, the lofs is a fum of money, and yet the 
 
 B b infurer
 
 194 Nature of an Insurance Contract. 
 
 infurer is liable, although the body of the fhip 
 may have fuftained no adlual injury. 
 
 In this cafe, all the damage arofe from the 
 difpedion of the crew, and was therefore a con- 
 fequence of thej mafte4-'s barratry. The fm all- 
 pox did not break out till fome time pofterior to 
 the removal of the embargo ; fo that the vefTel 
 might have failed in the interval, but for the 
 want of failors. 
 
 For the defendant it was maintained, that 
 this was an infurance on the bodj of the Jhip^ 
 which had received no damage. Such an in- 
 furance did not comprehend a lofs upon the voyage^ 
 where the body of the fhip was not injured. For 
 fuch a lofs the freight mull anfwer. 
 
 The mafter's condu6l was not barratry, as he 
 aded for the benefit of his owners. Befides, 
 the lofs is too remote a confequence of the barra- 
 try, whereas it ought to be direct and immediate. 
 Jones V. Sch?nolL 
 
 In the cafe Fletcher v. Pole^^ the fhip tartar 
 was infured " at and from London to Newcaftle 
 " and Marfeilles, and at and from Marfeilles to 
 ** her ports of difcharge in the Weft Indies.'* 
 Having met with a ftorm, fhe was obliged to 
 put into Port Mahon ; and the captain obtained 
 leave of the Vice-admiralty Court to have the 
 fhip furveyed, in confequence of which fhe was 
 detained there for a confiderable time. Part of 
 the demand upon the underwriter was founded 
 
 on 
 
 * Before Lord Mansfield zt Guildhall ^{x,ti Eafler 1769.
 
 Connection of the Accident and Loss. 195 
 
 on the expence of' wages anil provifions incurred 
 during the detention, as part of the damage oc- 
 cafioned by the ftorm. But Lord Mansfield or- 
 dered thefe articles to be (truck out of the ac- 
 count. That lofs was as immediate a confe- 
 quence of the ftorm, as this is of the barratry. 
 
 The Court conlidered it as a fettled point in 
 pradtice, that failors wages and provilions are 
 not recoverable in confequence of a policy on 
 the body of the Ihip. In the cafe of a ranfovi 
 ovfalvage, there is a damage done to the body 
 of the fhip. The rule difcharged. Termly Re- 
 ports, Feb. /\, 1736. 
 
 Upon precifely the fame principles, the under- 
 writer is not liable for the rife or fall of markets, 
 nor for the failure of the alTured's fpeculations 
 in trade. Such an infurance as this, that goods 
 iliall bear a certain price, is no doubt fometimes 
 entered into. But it is not implied in a com- 
 mon maritime policy. 
 
 It may no doubt frequently happen, when the 
 affured meets with an accident in the tranfporta- 
 tion of his m.erchandife from place to place, 
 that the damage he fuftains arifes not fo much 
 from any deterioration of the commodities them- 
 felves, as from the effedf of circumftances with 
 regard to their market value. But this lofs ap- 
 pears too remote a confequence of the accident to 
 atfed the infurer. It has accordingly been often 
 decided, and is a point perfedlly fettled, that the 
 
 underwriter
 
 196 Nature of an Insurance Contract. 
 
 underwriter is not liable for the change of mar- 
 kets. 
 
 * Rucker infured Lewis, on fugars, by thelhip 
 the Vrow Martha, from St Thomas's to Ham- 
 burgh. In courfe of the voyage, the fugar was 
 damaged by the fea- water ; in confequence of 
 which accident, the proprietor not only fufFered 
 a lofs by the actual diminution of the value of 
 the fugars below the prime colt, but he likewife 
 fuftained a lofs, by being obliged to fell them im- 
 mediately at what they would bring ; whereas, 
 if he had kept them for fome time, as he had in- 
 tended, he would have brought them to a rifing 
 inltead of a falling market. 
 
 And he inliiled, that he was entitled to be in- 
 demnified of both thefe loITes. 
 
 Lord Mansfield faid, ** Infurance is a con- 
 " tract of indemnity againft the perils of the 
 " voyage ; the infured engages, that the thing 
 ^* fhall come fafe ; he has nothing to do with 
 '' the market ; he has no concern in any pro- 
 ** fit or lofs which may arife to the merchant 
 ** from the goods." — " The aifured here aded 
 " upon fpeculation, and had ordered the goods 
 " to be kept up till the price fhould rife. But 
 " no private fchemeor proje6t of trade of the in- 
 "fured can affedf the infurer, who knows no- 
 '-' thing of it. He does not mean to infure, that 
 
 " the 
 
 * This cafe is fo complicated, and touches upon To many 
 points not yet explained, that it feems proper to referve a 
 fjuU ftatement of it to a fubiequent chapter. See Pari 11. 
 fh. 3. \ 2. on Partial Lofs.
 
 Connection of the Accident and Loss. 197 
 
 " the price of fugars Ihall rife to any particular 
 ** amount. If fpeculative deftinations of the 
 *' merchant, and the fuccefs of fuch fpecula- 
 " tions are to be regarded, it would introduce 
 '* the greatell injuftice and inconvenience." 
 
 It was found, that the afllired was only en- 
 titled to the diminution of value which the fu- 
 gars had fuftained below the prime cort, with- 
 out regard to the lofs occafioned, by their having 
 come to an unfavourable market. 2. Burr. 1167. 
 
 The following Scotch cafe ferves to illuftrate 
 the fame pofition. 
 
 Richardson and Co, agaiiijl Stodart &€. 
 
 In the year 1776, Richardfon and Co. oi Perth, 
 opened a policy of infurance on a cargo of 
 falmon for Venice, where it was intended the 
 falmon Ihould arrive during the feafon of Lent. 
 Having met with unfavourable and tempeftuous 
 weather, which obliged him to throw overboard 
 a part of the cargo, the fhipmaiter put into the 
 port of St Lucar, on the coall of Spain, in order 
 to refit the vefTel. 
 
 At that place, he was perfuaded by certain mer- 
 chants, that it would be more for the intereft of 
 all concerned, to difpofe of the cargo there, even 
 at an undervalue, than to proceed to the place 
 of his deftination, which he would not probably 
 reach before the end of Lent ; when, befides the 
 necelTary fall of the market, the falmon would 
 
 probably
 
 198 Nature of an Insurance Contract. 
 
 probably be fpoiled with keeping. The cargo 
 was fold accordingly at an undervalue. 
 
 In an action, at the inftance of Richardjbn 
 and Co. again ft Mcjf. St oner Hunter and Ker^ 
 the St Lucar merchants, although no fufpicion 
 of fraud was thrown upon thefe gentlemen in 
 the tranfaction ; yet the Court of Seffion confi- 
 dered their conduct as fo rafh and faulty, that 
 they fubjected them in the damage fuftained, 
 in confequence of the fale at St Lucar, by the 
 owners of the falmon. 
 
 Mejjfi Richardfon and Co. alfo raifed an ac- 
 tion againft the underwriters, with a view of 
 jncrealing their fecurity of payment ; and it was 
 pleaded for the alTured, that the damage fuftain- 
 ed at St Lucar was within the rilk of ** perils of 
 the fea i^"* as it was a ftorm at fea that had ulti- 
 mately been the caufe of the imprudent fale ; 
 that it was immediately owing to *' arrejl^ re- 
 Jtrainty and detainment,^* though not of " kings and 
 '* princes,"*^ yet of " people i'* whofe condition or 
 quality is not excepted in the policy. But what 
 they principally refted upon was, that the ma- 
 iler was guilty of barratry , in the prefent very 
 imprudent departure from his inftrudtions, 
 which was a breach of his contract with the 
 owners. 
 
 It was anfvvered, the only lofs which arofe 
 here from ** perils of the fea,*' that of part of the 
 falmon thrown overboard, the infurers are wil- 
 ling to repair. As for the going into the har- 
 bour
 
 Connection of the Accident and Loss. 199 
 
 bour of St Lucar, it was no lofs in itlelf; nor 
 did any other confequence follow from it, than 
 a fcheme of trade^ concerted for the benefit of 
 the owners, which is ftrangely compared to de- 
 tention by kings, princes, or people. With regard 
 to barratry, it is a criminal act, and cannot ex- 
 ill without a fraudulent defign ; whereas, although 
 the condud of the captain might be injudicious, 
 and imprudent, ftill there was nothing in it 
 which betrayed the want of honed intention. 
 
 The Court found, ** That the underwriters 
 " were not liable for any lofs that might have 
 " arifen from the fale of the falmon at St Lu- 
 " car." Fac. Coll. Nov. 20. 1783, 2Ln6.Dec.22. 
 1784*. 
 
 In this cafe, it is clear there was no barratry. 
 The decifion may be fuppofed to have proceeded 
 on one of two groundsr. Either that the mafter was 
 guilty of grofs mifconduSl, which ought to free 
 the infurer ; or elfe, what is more probable, that 
 the lofs here did not arife from Jea-damage, but 
 from an impruduit Jcbeme of trade, in which the 
 mafter had adled m his capacity of fupercargo. 
 
 13. So much for the connedtion that muft 
 fubiift between the accident and the lofs, as caufe 
 
 and 
 
 * There was a feparate point in this cafe, which was alone 
 decifive of the queftion. There was a N. B. in the policy, 
 " Corn, fifli, fruit, ire. warranted free of average, except 
 general," <b'c. But, according to the Reporter, the Court 
 did not reft their judgment on this ground.
 
 200 Nature of an Insurance Contract. 
 
 and efFedl of each other. In the fame manner 
 there mufl be a connection in point of time. 
 
 Here, . however, the terms of the policy fug- 
 geft a precife rule, which judges have wifely 
 laid hold of. An underwriter, it has been deci- 
 ded, is not liable for the confequences of any ac- 
 cident, unlefs thefe confequences are felt during 
 the currency of the riik. It is not enough that 
 the accident happens, the lofi muil actually be 
 fuilained during the fubfiftence of the contrad. 
 The expiration of the policy forms a precife 
 line, after which the infurer cannot be fubjed- 
 ed to confequential loflTes. 
 
 LbcKYER againjl Offley. 
 
 The defendant, on 19th Auguft 1785, under- 
 wrote L. 200 on the fhip Hope, from Hamburgh 
 to London. 
 
 In the courfe of the voyage, the mafler com- 
 mitted barratry, by fmuggling on his own ac- 
 count, by hovering, and running brandy. On 
 the ift September 1785, the fhip arrived fafe 
 at her moorings in the river Thames, and re- 
 mained there in fafety till the 27th of the faid 
 month of September, when fhe was feized by the 
 revenue-officers for the fmuggling before flated. 
 
 Thefe were the material facts of a verdict fub- 
 mitted by a jury for the judgment of the Court, 
 upon this point. Whether the Jeizure of a Jhip^ 
 AFTER the completion of her voyage^ for a caufe 
 
 of
 
 Connection of the Accident and Loss. 207: 
 
 of forfeiture during the my age ^ is within the 
 poiicy *. 
 
 For the plaintiff, it was argued, that this was 
 evidently a lofs arifing from barratry, which 
 had fubjefted the fhip to forfeiture. The Ho- 
 vering acl^ 24. Geo. III. c.47. declares, that vef- 
 fels acting like the fhip in queflion, Jhall be for- 
 feited : and as no particular time is expreffed, 
 the forfeiture attaches that moment the caufe of 
 feizure ariles.. 
 
 This is different from the cafe of a lliip recei- 
 ving a wound, which does not caufe her imme- 
 diate death, and where it may be uncertain 
 when the lofs fhall be complete : for here the lofs 
 has actually taken place : the fhip was forfeited 
 the moment of the fmuggling, even although fhe 
 had afterwards come into the hands of a bona fi- 
 de purchafer ; and an infurer cannot Itand in a 
 better fituation than a bona fide purcbafer. 
 
 In the cafe of a capture and ranfom, the afTu- 
 red receive no adual injury during the voyage ; 
 but merely become liable, at a fubfequent pe- 
 riod, to a claim on the ranfom-bill ; the event 
 of which may be contingent at the termination 
 of the policy. So that the infurer is not only 
 
 C c liable 
 
 * There was another point in this caufe, Whether the 
 lofs was total, and the affured had a right to abandon ? to 
 which a great part of the jury's verdict related. But as that 
 point does not appear to have been decided, it is unneceda- 
 ry to ftate here, either the fa6ts found by the jury, or the 
 reafonings with regard to it.
 
 302 Nature of an Insurance Contract. 
 
 liable for lofs happening during the voyage, but 
 %x future damage ariling from any a6i done du- 
 ring the voyage. This is, at leafl, a confequence 
 of damage done during the voyage, and Lord 
 Mansfield,^ in Valleio v. Wheeler ^ faid, — *' Whe- 
 " therthe lofs happened by the adl of barratry ; 
 ** that is, during the fraudulent voyage, or af- 
 *' ter^ is immaterial." 
 
 If the affured cannot recover in this cafe, un- 
 derwriters can never be liable for this fpecies of 
 barratry by fmuggling ; for the feizure can 
 fcarcely be ever made, till the veflel has been in 
 port 24 hours. 
 
 For the defendant, it was obferved. That al- 
 though the feizure, for fmuggling, of a Ihip, after 
 Ihe had been 24 hours in port, was a thing that 
 happened frequently ; yet this was the firft in- 
 flance of an attempt to fubject the infurers in 
 fuch a cafe. 
 
 It is a millake to fay, that the peril infured a- 
 gainft is the a£l of barratry ; it is « lofs by barra- 
 try. This lofs mult happen before the termina- 
 tion of the infurance. In Valleio and Wheeler, 
 not only the a6l of barratry, but the lofs by bar- 
 ratry, was completed during the voyage infu- 
 red ; here the lofs by the feizure is fubfequent. 
 To fubject the infurers here, would be a great 
 extenfion of their fuppofed obligations, and 
 would ftir unexpected claims ; as the condemna- 
 tion might take place at any diltance of time, 
 after all accounts had been fettled between the 
 
 parties.
 
 Connection of the Accident and Loss. 203 
 
 parties, averages paid, and even the policy can- 
 celled. 
 
 No change of property takes place in confe- 
 quence of the adt of fmuggling, till condemna- 
 tion of the veflel. The aflured muft be depri- 
 ved of the pojfejjhn of the fubjevSl. If the pro- 
 perty were changed by tho. forfeiture merely, the 
 Crown would be entitled to the profits of any 
 voyage between the forfeiture and condemna- 
 tion. 
 
 WiLLES J. delivered the unanimous opinion 
 of the .Court. 
 
 The queftion feems to be new, — and fome 
 rule is necefTary. But it is more important, that 
 the rule be accurate and certain^ than that it be 
 eitablifhed one way or other. 
 
 The infurance is for a limited time, and the 
 lofs was not fuftained till near a month after that 
 time was expired. That, under the excife-laws, 
 the forfeiture attaches the moment the ad: is 
 done, may be true as to fome purpofes ; for ex- 
 ample, to prevent intermediate alienations or in- 
 cumbrances. But the a6lual property is not al- 
 tered till after the feizure. If the velfel, before 
 the feizure, had gone another voyage, the Crown 
 would not be entitled to her earnings. Till the 
 feizure, it is not certain whether the barratry 
 Ihall be taken notice of, and be the caufe of a lofs. 
 
 It would be dangerous to fubjed the infurer 
 in remote coiifequential damages. In the cafe 
 
 Meretony
 
 104 Nature of an Insurance Contract. 
 
 Meretony v. Dunlop *, a (hip was infured for 
 fix months, and three days before the expiration 
 of the time, Ihe received her death's wound, but 
 was kept afloat by pumping till three days after 
 the time. There, a verdid was given for the 
 infurer, and confirmed by the Court. Suppofe 
 a man, whofe life is infured, receives a mortal 
 wound fome ftiort time before the expiration of 
 the terra, but lingers till it is elapfed, the infu- 
 rer would not be liable. In Valleio and Wheeler, 
 the fhip was lojl during the 'voyage. 
 
 It has been argued, that this fhip would have 
 been liable to the forfeiture, even in the hands 
 of a fair purchafer. I do not know that it has 
 •been fo decided ; — may depend on circumftan- 
 ces. But it does not thence follow, that the in- 
 furer is, at any dijiance of time, anfwerable for the 
 lofs, under a limited undertaking. 
 
 This leads to the view which weighs mofl 
 with the Court. The cuftom-houfe officers may 
 feize at any time within three years ; and the 
 attorney general may file an information, as long-^ 
 as the fhip is in being. Is the infurer all this 
 time to continue liable ? Suppofe the fhip had 
 gone feveral voyages afterwards ; fuppofe a par- 
 tial lofs paid, and the underwriter's name flruck 
 off, Ihall an action be brought afterwards ? His 
 accounts could never be' fettled while the fhip 
 is in exiflence. There muft be fome limitation 
 therefore on the duration of the rilk , and the 
 
 fubjett 
 ^ Eaft. 23d Geo. HL
 
 Connection of the Accident and Loss. 205 
 
 fubjedt admits of none which is accurate, ex- 
 cept that pointed out by the policy, viz. " the 
 *' fhip's mooring 24 hours in good fafety." 
 
 Judgment for the defendant. Tcrmly Reports^ 
 May 26. 1786. 
 
 The following cafe is fo parallel, that we can- 
 not forbear inferting it, upon the authority of 
 Mr Wejket. 
 
 Roche v. Thompson. 
 
 The Margaret, Captain Burke was infured 
 from- Limerick to Havre de Grace. She arrived 
 there after having fufTered damage during the 
 voyage ; and whilft the repair of thofe damages 
 was performing, being fome weeks after her ar- 
 rival, fhe was feized in the port of Havre, an 
 embargo having been laid on all Britifti fliips, 
 and hoftilities commenced between France and 
 England. 
 
 The owner of the fhip brought actions againft 
 the infurers, not only for the repairs, but alfo 
 for the lofs occafioned by the feizure and embar- 
 go, which he ftated as a confequence of the nccef- 
 fity of continuing at Havre to repair. The de- 
 fendants paid into Court an average lofs for the 
 repairs of the damage incurred during the voy- 
 age. But for any remoi£ confequences of that 
 damage, confequences which had appeared after 
 the expiration of the policy, and the fhip " had 
 " been 24 hours fafely moored," they denied 
 ;hat they were accountable, — Verdid: for the 
 
 defendant
 
 2o6 Nature of an Insurance Contract. 
 
 defendant. At Guildh, Trin. lyyg, Sqq fVe/kei^s 
 Digejl. 
 
 CHAP. III. 
 
 Of the Nature and Extent cf the Infurer's Obliga- 
 tioHy when a Iqfs is incurred in terms of the 
 Policy, 
 
 WE have hitherto confidered what is the 
 nature of that event againft which provi- 
 lion is made by infurance ; in other words, what 
 is the nature, and duration, of the infurer's rilk. 
 It remains to be examined, what is the extent of 
 his obligation, when the event happens, againft 
 which it was meant by the contract to provide. 
 This leads into a very extenfive field, and ren- 
 ders a divifion of the fubjed neceflary. 
 
 There are two great circumftances which af- 
 fe6l the infurer's obligation upon lofs being in- 
 curred. Thefe are, in the Jirfl place, the par- 
 ticular nature of the policy, or the interefl which 
 the aflured has in thefubje(3: ; and, in the Jecond 
 place, the nature and extent of the lofs. 
 
 With regard to the .firft of thefe, the particu- 
 lar nature of different policies, it may be obferv- 
 ed, that contrads of infurance differ materially 
 from each other with refpeft to the pecuniary in- 
 terefl which the affured poffelTes in the fubjedl 
 of the bargain. This circumftance, of the af- 
 fured having a pecuniary interefl, regulates the 
 
 effea
 
 Extent of the Insurer's Obligation. 207 
 
 effect of the agreement, fo as to determine 
 whether or not the infurance fliall be held as a 
 contradt of indemnity, and how far the obliga- 
 tion of the one party Ihall be mealured by the 
 other's lofs. 
 
 The other circumftance affecting the amount 
 of the underwriter's obligation, is the extent of 
 lofs. It is fufficiently obvious in what man- 
 ner the obligation of the underwriter mull be 
 encreafed or diminifhed according to the extent 
 of damage incurred. At the fame time, there 
 occur confiderable varieties in this refpedt, ari- 
 ling from the application of different policies to 
 different kinds and degrees of lofs. 
 
 Sect. I. How the extent of the underwriter* s obli- 
 gation is affected by the ajjured^s interefi in the 
 JuhjeEl. 
 
 With refped: to the intereft which the affured 
 may have in the fubjedt of the bargain, three dif- 
 ferent forts of policies ought to be diflinguiflied. 
 
 i/?, Infurances, properly fo called ; or open po- 
 licies upon interejl. That is, policies in which 
 the amount of the infurance is limited by the 
 pecuniary intereft which the alTured has in the 
 rifk ; and the extent of that intereft is left to be 
 afcertained by a proof. 
 
 idlyy Wager policies ; in which the aflured 
 has no intereft in the fubjed ; and 
 
 3(^/y, Valued policies ; which partake of the 
 
 nature of both the former. Of thefe in their 
 
 order, 
 
 I, In-
 
 '2o8 Nature of an Insurance ContracTo 
 
 I. Infurance has been explained " a contrad 
 ** of indemnity, from lofs arifing upon an un- 
 *' certain event." An infurance, it has been 
 obferved, is not a bargain for a certain afcer- 
 tained payment or performance ; but with re- 
 gard to a rijh undertaken by one of the parties. 
 The claim of the alTured muft depend upon an 
 event that is uncertain, either as to its exifl- 
 ence, or its extent. From this confideration, 
 that infurance is an agreement for a conditional 
 payment or performance, it mull appear to pof- 
 fefs fomething of the nature of a wager. A 
 wager has been defined " any thing pledged 
 " upon a chance *.'' According to this expla- 
 nation, an infurance, which is ** an indemnity 
 " from lofs pledged upon a chance," becomes a 
 fpecies of wager. 
 
 It fhould feem, however, that this is uiing 
 the term wager in rather too extenfive a fenfe. 
 In ftridt language, a wager is an agreement 
 with regard to a fubjedl in which neither party 
 has, independent of the bett, a pecuniary in- 
 terefl. But an infurance fuppofes that the one 
 party has fuch an afcertainable intereft in that 
 fubjed, the fafety of which is warranted by the 
 other. If one man, for example, undertakes to 
 pay a fum of money to another, in cafe the 
 lottery ticket of this laft fhould turn up a blank, 
 the contract is properly an infurance; but if 
 fuch payment depends upon the comparative 
 
 fuccefs 
 
 * Johnfon's Di<fi.
 
 £!ffect of Interest in the Subject. 209 
 
 iuccefs of two tickets, in neither of which the 
 contrading parties are interefted, it is a mere 
 wager. 
 
 There feems to be flill another difference ; 
 the obje6l of infurance, flriftly fpeaking, is not 
 to make a pojltive gain, but to avoid aElual 
 damage and harm, from the event provided a- 
 gainft. The alTured muft not only have an 
 interefl in the fubjedl, but he muft be feeking 
 indemnification, in cafe that fubje6t, in which he 
 is fo interefted, fhould be loft or impaired. To 
 ufe the phrafe of the civil law, infurance relates 
 to a damnum emergens, and not to a mere hermit 
 cejfans. Not to the failure of an expefted pro- 
 fit, but to an actual lofs incurred. 
 
 It muft, however, be acknowledged, that al- 
 though an infurance, ftridtly and accurately 
 fpeaking, feems to relate to pofuive lofs merely, 
 in oppofition to expelled profid, yet this difti no- 
 tion is not generally attended to. The failure 
 of an advantage, of which we have formed a 
 ftrong expectation, does not appear very differ- 
 ent from adual damage fuftained. Between a 
 wager, therefore, and an infurance, the material 
 difference feems to be, the aflured having a pe- 
 cuniary intereft in the fubjed. It is only where 
 there is fuch an intereft, that there can be 
 room for the proper object of an infurance 
 contrad, an indemnification from lofs. 
 
 2. Numerous are the contrivances which men 
 have fallen upon for the gratification of their 
 
 D d propenfity
 
 210 Nature of an Insurance Contract* 
 
 propenfity to gaming. And it is eafy to fee, that 
 the uncertain event of a maritime adventure, af- 
 fords a very obvious and extenlive field for the 
 calculation of chances, or the interpofition of 
 fortune. In moil of the foreign mercantile ftates, 
 indeed, the pradice of gaming in infurance, 
 feems to have been nipt in the bud by the wif- 
 dom of the Legiflature. But, in Britain, (where 
 little attention, comparatively, has been paid by 
 the public, to the regulation of this contract) as 
 foon as commerce became extenlive, and infu- 
 rance generally underftood, the praclice of wa- 
 gering on mercantile adventures became ex- 
 tremely common. 
 
 It was cuflomary to carry on thofe mercan- 
 tile wagers, by clothing the bargain with the 
 forms of a real infurance-contrad, and by fup- 
 poling an interejl in the alTured, into the fidlitious 
 nature of which the underwriter precluded him- 
 felf from enquiring. They were conceived in 
 the terms, " Intereft, or no intereft ;" or, " with- 
 ** out farther proof of intereft than the policy." 
 In thofe agreements, as the affured is not fuppo- 
 fed to have any real intereft in the fubjedl, there 
 can be no real lofs which fliall regulate the ob- 
 ligation of the underwriter. They want the ef- 
 fential requiftte of an infurance ; they are not 
 obligations of indemnity ; but are to be conlider- 
 ed, though in the form of an infurance, as mere 
 wagers, and the view of parties in the bett, muft 
 be gathered from other circumftances. 
 
 As
 
 Effect of Interest in the Subject. 211 
 
 As a confequence of the aiTured having no in- 
 tereft in the fubjed, it followed, that the under- 
 writer could have no concern with partial hjjes, 
 A partial lofs was not an event fufficiently ac- 
 curate, to be the criterion of a wager. Thefe 
 policies were, therefore, exprefled " free of hve- 
 ** rj§-^," and *' without benefit of falvn^e to the 
 *' infurer." That is, the underwriter was not 
 to be liable for partial (or average) loffes ; and, if 
 the vefTel was once captured or wrecked, during 
 the currency of rilk, and the infurer had paid 
 the lofs, he was not to claim the advantage of any 
 partial recovery that might be made. 
 
 3. There are, however, many cafes, in which 
 the affured has an intereft in the fubjed to be 
 fecured, but in which it may be difficult or im- 
 poffible to afcertain the exact amount of that in- 
 tereft. For example, in a policy upon returns 
 from a diftant country, the exad: value and even 
 the nature of which are in many cafes uncer- 
 tain ; in the cafe of infurance on prizes, where 
 the real value is difficult to difcover, until the 
 veflel is brought into port, and fold ; and, in 
 every inftance, where the owners have been pre- 
 vented, by accident, from receiving regular or 
 fatisfaftory advices. 
 
 In thefe, and fimilar circumftances, it feems pro- 
 per, and has become cuftomary, to infert a claufe 
 of valuation in the policy ; by which the under- 
 writers agree to eftimate the affiired's intereft at 
 a certain fixed amount, without the neceility of 
 
 farther
 
 2iis Natup.z of an Insurance Contract. 
 
 farther proof upon the fubjedl ; to receive a cor- 
 refponding premium ; and to indemnify the af- 
 fured to that extent, in cafe of lofs. The claufe 
 for this purpofe, either fpecifies a particular fum 
 as equivalent to the afllired's interefl ; thus, " In 
 " cafe of lofs, the faid Ihip fhall be valued at 
 " L. looo, and the faid cargo at L. 1500 ;" or it 
 eftimates the value as equal to the fums under- 
 written ; *' the faid fhip, &c, valued at the fums 
 " underwritten," 
 
 A valued policy evidently partakes of the na- 
 ture, both of a policy on interefl, and of a wager. 
 It fuppofes, on the one hand, a bona fide inter- 
 eft in the aifured. On the other, this intereft 
 does not altogether regulate the amount of the 
 underwriter's obligation. There muil be a real 
 intereft ; but a contrivance is fallen upon to fu- 
 perfede the necefiity of proving the exad: amount. 
 4. The bad confequences of every fpecies of 
 gaming, whether by v/ay of wager or otherwife, 
 Reed not be inlifted on. The pradice of gaming, 
 by the agreeable exercife which it affords to the 
 mind, tends to engrofs the attention, and to with- 
 draw the exertion of men from ufefal purfuits. 
 At the fame time, by pointing out a fpeedy, tho* 
 hazardous mode of accumulating wealth, it pro- 
 duces a contempt for the moderate profits of 
 honeft induftry. . Thefe are not its worft confe- 
 quences. Not only does it pervert the aftivity 
 of the mind, but deprave the affections. By the 
 frequent and great reverfes of fortune to which 
 
 it
 
 Wager Policies restricted. 213 
 
 it gives occalion, it becomes the fource of much 
 private mifery ; and it is detrimental to the pu- 
 blic, by fuggefting conftant temptations to fraud, 
 and to atrocious crimes. 
 
 There are few well regulated governments, 
 accordingly, in which gaming has not been laid 
 under conliderable rellriftions. And by the ordi- 
 nances of almoll all the commercial ftates of 
 Europe, wagers upon mercantile adventures are 
 totally prohibited. No fupport is given, in any 
 extent whatever, to a gaming contract, if it be 
 executed in the form of an infurance* ; and 
 every infurance upon expeEled profit, even in 
 oppoiition to pq/itive bfs, is confidcred in a very 
 unfavourable point of view, 
 
 *' The owners and mailers of fhips," fays a 
 French regulation, " fliall not have infurance 
 " made on the freight their veflels fliall earn ; 
 " nor merchants on an expeded profit of their 
 *' goods ; nor feafaring men on their hire-j-.'* 
 *' All infurances," fays the ordinance of Coningf- 
 herg^ " on expected gain, wagers, or fuch like 
 *' inventions, future freight-moneys, feamens 
 *' wages, are univerfally forbid, and declared of 
 " no force |." 
 
 In Britain ideas lefs flrid have been entertain- 
 ed. In particular, the diltindion between an infu- 
 rance againft pofuive lofs, and upon expected 
 
 profit, 
 
 * Ord. of Amjlcrdam and Rotterdam ; of Coningjlergy Ge- 
 noa, Stockholm and France. 
 t Ord. Fr. No. 677. X No. 780. as collected by Magenr.
 
 214 Nature of an Insurance Contract. 
 
 profit, is totally overlooked ; a variety of bar- 
 gains of this kind are in daily pradice, and meet 
 with full fiipport from the law. Such is the fpe- 
 culation fometimes entered into, that goods (hall 
 bring a particular price ; the infurance on 
 freights ; and the agreement by which a fa6tor, 
 to whom a cargo is configned, infures his expect- 
 ed commifiion on the fale of it. 
 
 It does not indeed appear, that a dired wager, 
 however contrary it may be to utility, can be 
 coniidered as invalid at common law. In fadt, it 
 will perhaps be found difficult to draw the line 
 between wagers, and other bargains for a condi- 
 tional payment or performance. From the Eng- 
 lilh Courts they have accordingly received com- 
 plete fupport, unlefs where prohibited by ftatute, 
 contrary to morality or decency, or calculated to 
 create a prejudice to third parties. 
 
 Independent of the effed: that is given, at 
 common law, to a wagering contradl, it may be 
 obferved that policies of infurance with the 
 claufe " Interefl or no intereft,'* were not ne- 
 cefTarily wagers. The alTured might have an 
 intereft, although, by the contrad, the under- 
 writer precluded himfelf from enquiring into it. 
 From about the time of the Revolution, ac- 
 cordingly, wager-policies became common ; and 
 being made effectual by judges, they increaled 
 rapidly, along with the advancement of trade, 
 and the pradlice of real infurance. Thofe fidi- 
 tious infurances, from the fituation of mu- 
 tual
 
 Wager Policies restricted. 215 
 
 tual trull and confidence which fabfifls between 
 affured and underwriter, connedled, in a pecu- 
 liar manner, the power with the temptation 
 to fraud ; and were therefore, more dangerous 
 than common wagers. 
 
 Befides this, and the general mifchievous con- 
 fequences attending them in common with all 
 other fpecies of gaming, mercantile wagers had 
 another particular inconvenience ; that, by in- 
 creafmg the demand for infurance, they augment- 
 ed the rate of premium, and confequently the 
 expence attending the tranfportation of goods 
 to the real trader. Thefe evils called at lall for 
 the interference of the Legillature ; and a ftop 
 was, in fome meafure, put to the pradice by a 
 Britifh ftatute, 19. Geo. II. c. 37. 
 
 The preamble ilates the pernicious confe- 
 quences ariling from policies, without intereft ; 
 the fraudulent lofs of Ihips and cargoes ; the en- 
 couragement of prohibited trade ; and the en- 
 couragement of gaming. Therefore the ftatute 
 provides, *' That no alTurance on fliips or goods 
 *' Ihall be made after the ift Auguil 1746, by 
 any Britifli fubjed, interejl or ?io inter ejl^ or 
 without farther proof of value than the poli- 
 cy, or by way of gaming or wagering ; — or 
 *' without benefit of falvage to the infurer j — 
 and every fuch infurance Ihall be void." § i. 
 Provided always, that afiurance on private 
 Ihips of war, fitted out by any of his Maje- 
 fty's fubjeds, folely to cruife againll any of 
 
 " hie 

 
 2i6 Nature of an Insurance Contract. 
 
 " his Majefly's enemies, may be made by or for 
 " the owners thereof, intereft or no intereft, 
 " free of average, and without benefit of falvage 
 ** to the alTiirer; any thing herein contained to 
 ** the contrary notwithflanding." § 2. 
 
 " Provided alfo, that any merchandife or ef- 
 " feds from any ports or places in Europe or 
 " America, in the pofleflion of the Crowns of 
 " Spain or Portugal, may be aflured in fuch way 
 " and manner as if this ad: had not been made." 
 
 §3- 
 
 " And be it enaded, that it fhall not be law- 
 
 " ful to make reajfurance, unlefs the afTurer 
 " Ihall be infolvent, become a bankrupt, or 
 die •, in either of which cafes, fuch aifurer, 
 his executors, adminiftrators, or affigns, may 
 *' make reaflurance to the amount before by 
 ** him aifured, provided it fhall be exprelTed in 
 " the policy to be a reajfuraiice " § 4. 
 
 By the next fedion of the ftatute, it is enacfl- 
 ed, that ** every fum of money to be lent on 
 bottomry, or at refpondentia^ upon any Bri- 
 tifh Ihip bound to the Eajl Indies, Ihall be 
 lent only on the Ihip, or on the cargo of fuch 
 fhip, and Ihall be fo exprefled in the bond ; 
 " and the benefit of falvage fhall be allowed to the 
 " lender, his agents and affigns, who alone fhall 
 " have a right to make affurance on the money 
 " fo lent. No borrower of money on bottomry 
 *< as aforefaid, Ihall recover more by an affu- 
 
 ** ranee. 
 
 it 

 
 Wager Policies restricted. 417 
 
 ** rance, than his real intereft, excluUve of the 
 " money borrowed." 
 
 The exception in this ftatute with regard to 
 private fliips of war, is obviouily to encourage 
 privateering adventurers. The other exception, 
 permitting infurance, without further proof of 
 intereft than the policy, on Spanifh and Portu- 
 guefe Ihips, is founded on a regulation of thofe 
 countries, by which no foreigner is permitted to 
 trade between Spain or Portugal, and their co- 
 lonies in South America ; fo that all fuch trade 
 muft be carried on under fiditious names. 
 
 As a farther exception to this ftatute, it de- 
 ferves notice, that the prohibition is not under- 
 ftood to extend to infurances on foreign Jhips. 
 Thefe are not within the words, and fcarcely 
 within the evils to be guarded againft. This 
 point was decided in the following cafe. 
 
 Thelluson againjl Fletcher. 
 
 A policy of infurance was made ** on all 
 goods loaden, or to be loaden, aboard the 
 (hips Le Soigneux^ la Fucdle, ^ k Vainqueur^ 
 all or any of them. The laid goods and mer- 
 chandifes, by agreement, are valued at 
 
 
 on 25 cafks of clayed fugar, and 12 hogf- 
 *' heads of Mufcovados. The policy to be deem- 
 ** ed fufficient proof of intereft in cafe of lofs." 
 The ftiips were Freiwh property, 
 
 E e Two
 
 2i8 Nature of an Insurance Contract. 
 
 Two of the fliips were captured, and the 
 other loft. The defendant had underwritten 
 L. 300, and the jury had valued the damages at 
 the fum infured, without any evidence of the 
 alTured's intereft, except the defendant's fub- 
 fcription to the policy. 
 
 On motion for a new trial, it was urged for 
 the defendant, that it was incumbent on the af- 
 fured to fhew fome further intereft ; and an affi- 
 davit was produced, tending to prove, that in 
 fadl the alTured had no intereft. It was contend- 
 ed for the purfuer, that the prefent infurance 
 being on foreign Ihips and property, did not fall 
 within the ftatute Geo. II. prohibiting wager- 
 policies. 
 
 The Court faid, that this was not a policy with- 
 in the ftatute ; foreign Ihips not having been in- 
 cluded in that ad, on account of the difficulty 
 of bringing witnefles from abroad to prove the 
 intereft. The rule difcharged. Douglases Re-- 
 ports f yth February 1780. 
 
 It was not till fome time after the ftatute 
 19. Geo. 11. formerly mentioned, that the fame 
 prohibition was extended to all other wagers in 
 the form of infurance. Wagering policies, par- 
 ticularly on lives, had, it is believed, become ex- 
 tremely common, and were attended with the 
 general inconvenience of being a mode of gaming. 
 Such infurances on lives are reprobated altoge- 
 ther by many of the foreign mercantile ft ate s, 
 
 as
 
 Wager Policies restricted. 219 
 
 as dangerous to the perfon whofe life is infured. 
 But it is not imagined, that apprehenlions of this 
 kind could have much weight under the govern- 
 ment of England. 
 
 With the view, principally, it fhould feem, 
 of preventing gaming, all ivagers in the form of 
 an infiirance, whether on lives, or on ariy other 
 events are prohibited by a ftatute, 14. Geo. III. 
 cap. 48. 
 
 The preamble ftates, ** That inconveniencies 
 *' had arifen from wagering infurances on lives.'* 
 It is therefore provided, ** that no infurance fhall 
 *' be made on the life of any perfon, nor on 
 " any other event or events whatever, wherein the 
 " afTured has no intereft, or by way of gaming or 
 ** wagering. And every infurance contrary to 
 " the meaning hereof, fhall be null.'* § i. 
 
 " It fhall not be lawful to make any policy 
 ** on lives y or on any other events without infert- 
 *' ing the name of the perfon interefted, or for 
 *' whofe ufe, benefit, or on whofe account, fuch 
 *' policy is fo made or underwritten." § 2. 
 
 *• In no cafe fhall a greater fum be recovered 
 " than the amount or value of the intereft." § 3. 
 
 " Nothing, however, in this ad, fhall extend 
 ** to infurances on ftiipping and merchandife, 
 *' which may continue to be infured as former- 
 "ly." §4. 
 
 This ftatute has received a general interpre- 
 tation, and is underftood as applicable to every 
 
 wager
 
 220 Nature of an Insurance Contract. 
 
 wager in the form of a policy of infurance, ex- 
 cept with relation to Ihipping and merchandife, 
 which had been formerly reftrided by flatute 
 19. Geo. II. 
 
 Roebuck v. Hammerton. 
 
 This was an action upon a wager in the form 
 of a policy, on the fex of the Chevalier D*Eon, It 
 was made fubfequent to the Jiatute 14. Geo, III. 
 cap. 48. 
 
 The counfel for the plaintiff inlifted, that the 
 flatute did not extend to this cafe ; that it was 
 not only not a policy, but the fubj eel- matter it- 
 felf was incapable of infurance ; and that the 
 nature of the ad:, not the form of the inilrument, 
 ought to decide. But this was a mere wager re- 
 duced into writing, not upon 2ir\y future contin- 
 gency, but upon a fa6l then exijling \ and there- 
 fore to conftrue it a policy, within the meaning 
 of the flatute, would be to extend the ad: to all 
 wagers, when the parties, for greater fecurity, 
 might think proper to reduce them into writing. 
 
 Lord Mansfield flopped the counfel for the 
 defendants, faying it was too clear to give them- 
 felves the trouble. The parties themfelves have 
 called it a policy, it is indorfed a policy, opened 
 as a policy, and any number of perfons might 
 have fubfcribed it as fuch. Therefore it is clear- 
 ly within the ad. — Fer. Cur. Let a nonfuit 
 
 be
 
 Wager Policies restricted. 221 
 
 be entered. — Cowper's Rep. HiL 18. Geo. III. 
 B. R. 
 
 ■ Another cafe, MolUfon v. Staples^ is flated by 
 Mr Park, of a policy " on the event of there 
 *' being an open trade between Great Britain 
 ** and the province of Maryland, on or before 
 *' 6th July 1778.'* Lord Mansfield faid the 
 plaintiff could not recover; ift, Becaufe, having 
 no other intereft than the general concern which 
 every man has in the events of war and peace, 
 it feemed doubtful whether this was an intereft 
 in terms of the a6t ; 2dfy\ The policy was void, 
 not having the name inferted according to the 
 2d § of the ftatute. Park's Sjflem, ^.491. Note. 
 
 It does not appear, that this liberty of wager- 
 ing had ever been allowed with regard to infu- 
 rance from fire. Nay, in thefe infurances, it 
 has not only been requifite in all cafes, that the 
 affured fhould have an intereft in the fubjed, 
 correfponding to the fum infured, but it has 
 been cuftomary to provide, by a fpecial claufe 
 in the policy, that the infurance fhall not admit 
 of affignment. So that, although the affured 
 fhould transfer his right in the fubjed, yet the 
 infurance does not become ufeful to his affignee, 
 until the transference is made known to the 
 underwriters, and the policy indorfedby them. 
 
 Lynch v. Dalzell. 
 
 On the 28th July 1721, Richard Ireland took 
 out a policy of infurance from the Sun-fire office, 
 
 upoi>
 
 222 Nature of an Insurance Contract. 
 
 upon his houfe the Angel Inn at Gravefendj which 
 was continued from year to year. After his 
 death, his fon and fole executor AnthoJiy Ireland^ 
 brought the policy to the office, about Ghriftmas 
 1726, and had an indorfement made thereon, 
 that the policy belonged to him ; and he paid 
 the premium for the fucceeding year. 
 
 On the 24th Auguft 1727, a fire happened at 
 Gravefend, which burnt the houfe, and the ap- 
 pellants, Roger and John Lynchy appeared and 
 claimed the infurance as purchafers from Antho- 
 ny Ireland. The ufual affidavits were produ- 
 ced, that the Lynches had fuftained a lofs ; but 
 there was no evidence, that Ireland had fuffered 
 any damage by the fire ; indeed it appeared, that 
 although the fale of the fubjeds had been pre- 
 vious to the fire, yet the conveyance of the poli- 
 cy had taken place after it, and had been per- 
 fectly voluntary on his part. 
 
 Upon thefe fads, a bill in Chancery, exhibited 
 by the Lynches^ was difmifled by Lord Chancellor 
 King. In confequence of which they brought 
 an appeal. 
 
 It was argued for the afTurers, that thefe policies 
 are not conveyed with the fubjed, as incident 
 thereto, but are only fpecial agreements with 
 the perfons infuring, againfl fuch lofs or da- 
 mage as thofe perfons Ihould fuftain. And the, 
 appeal was difmiiTed, and the decree affirmed, 
 131?^ March lyi^* 3. Brown's Cafes in Parlia- 
 fjient.'No, 7 J. 
 
 Sapdlers'
 
 Wager Policies restricted. 223 
 
 Saddlers* Company v. Badcock. 
 
 Mrs Strode, leflee of a houfe, infured the fame 
 for feven years from fire, to the value of L. 400 : 
 her term therein expired before the policy, viz. 
 at Midfummer 1740 ; on the 6th January follow- 
 ing, the houfe was burnt down ; on the 23d Fe- 
 bruary following, Mrs Strode affigned the policy 
 to the plaintiffs, who are ground landlords, and 
 now a bill is brought againft the infurance-office 
 for the L. 400. Lord Chancellor faid, the que- 
 ftion is. Whether by the aflignment the plain- 
 tiffs are entitled to recover the L. 400 ? And I 
 am of opinion, that the party infured ought to 
 have a property in the thing infured at the 
 time of the infurance made, and at the time of 
 the lofs by fire, or he cannot be relieved. Mrs 
 Strode had no property at the time of the fire, 
 
 confequently there was no lofs to her ; and if fhe 
 had no intereft, nothing could pafs to the plain- 
 tiffs by the affignment. If the infured was not to 
 have a property at the time of the infurance or 
 lofs, any one might infure upon another's houfe, 
 which might have a bad tendency to burning 
 houfes ; infuring the thin^ from damage, is not 
 the meaning of the policy, it mufl mean in- 
 furing Mrs Strode from damage, and llie has 
 
 fuffered none. — Bill difmiffed without cofls. — 
 
 Eajl, 1745. I. Wiljbn 10. 
 
 5. From the nature of infurance, as a con- 
 tract of indemnity, as well as from the ftatute that 
 has been quoted, it appears very material to 
 
 fettle
 
 224 Nature of an Insurance Contract. 
 
 fettle what is fuch an intereft as the aflured is 
 entitled to cover from rifk, by an agreement of 
 this nature ; fo that he may not pay a greater 
 premium than is fufficient for his fecurity ; nor 
 be deprived, in any degree, of that fafety which 
 he is permitted to derive from infurance. 
 
 In the jirji place, it is clear, that the aflured 
 may cover his real property \ the fhip with her 
 furniture, and the cargo. And under this head 
 fall to be included, not merely the original coft of 
 either of thefe, but all expence incurred with a 
 view to the adventure. The whole outfit of the 
 fhip, and the whole expence attending the cargo, 
 form an addition to their refpedive values ; and, 
 in cafe of the adventure failing, are a pofitive 
 lofs to the owners. 
 
 The principle, that a perfon is entitled to fe- 
 cure himfelf againll all pofitive lofs^ extends not ' 
 only to the real property on board, and the ex- 
 pence of outfit, but to the premium given for the 
 infurance in^ queftion. There can be no doubt, 
 that a perfon who infures himfelf, lofes the pre- 
 mium he gives for that fecurity ; and there is 
 no reafon why he fhould not be indemnified of 
 this, as well as of any other damage. In fad:, 
 the expence of infurance is not materially different 
 from the value oi fhip and cargo. It is a part 
 of the coft attending the adventure; a part 
 of the outfit ; and it becomes a part of the value 
 of the goods at the next market. — The premium 
 of infurance, in fa6l, efpecially in time of war, 
 
 ma'*
 
 What is an insurable Interest. 225 
 
 may be a very great proportion of the alTu- 
 red's intereft, fometimes 25, 30, nay 60 guineas 
 per cent. \ if he was not entitled to cover it, he 
 would frequently be under a neceflity of rifk- 
 ing more than he could afford to lofe. 
 
 The right of the merchant, accordingly, to 
 infure his premium^ has, it is believed, been ac- 
 knowledged bv all the mercantile ftates of Eu- 
 rope. There are, indeed, one or two of the re- 
 gulations of Spain (under Philip II.) which pro- 
 hibit ** to infure the coji ofinfurance^ upon gold, 
 ** pearls, l^c. and merchandife from the Indies." 
 But it feems hard to fay, whether this regula- 
 tion has arifen from early and imperfedl: views, 
 or from an intention of checking the extent of 
 infurances upon importations from the Indies. 
 
 At prefent, it is univerfally eftablillied, that 
 an owner may cover his premium, as well as his 
 fhip or cargo, with commiffion, brokerage, and 
 all other expences attending the policy. Thus, 
 by the ordinances of Amfterdam, it is provided, 
 *' that goods maybe infured with all charges till 
 ** on board, the premium of infurance included." 
 If L. 100, therefore, is to be infured, at 10 per 
 cent, premium, the owner mult, for his own en- 
 tire fafety, infure not only L. 100, but like wife 
 L. 10, which he gives to be fecure as to the for- 
 mer fum-, and one pound, which is the premi- 
 um of infurance for the L. 10. The whole /urn 
 to be infured, mull be L. ill, or, more accu- 
 rately, L. 1 11^. 
 
 F f Not
 
 226 Nature of an Insurance Contract. 
 
 Not only may a merchant infure his real pro- 
 perty, but, in Britain, alfo the profit which he 
 is entitled to expect ; taking always proper pre- 
 cautions to prevent miftakes as to the nature 
 of the intereft covered. Thus a merchant who 
 has a cargo configned to him, may infure his 
 commijjlon upon the fales. This is a profit which 
 he has good ground to exped:, if the adventure 
 arrives. In fuch a cafe, however, it is under- 
 ftood in practice that he rnufl exprefs the in- 
 furance to be " on commiflion." 
 
 The general point is well illuftrated by the 
 following decifion, 
 
 Le Cras againjl Hughes. 
 
 The policy underwritten by the defendant, 
 was ** from St Ferdinando de Omoa to London ; 
 ** on goods, i^c, and on the fhip St Domingo, 
 '* prize to the fquadron under Captain LuttreV* 
 
 Verdid for the plaintiff, fubjedt to the opinion 
 of the Court on the following cafe. That Cap- 
 tain Luttrel commanding a fquadron, and Colo- 
 nel Dalrymple the land forces, proceeded to take 
 two regiller Ihips, one of which, the St Dorningo, 
 was lying a-float under the protedlion of Fort 
 Omoa ; the fort, fhip and cargoes, became a joint 
 prize to the land forces and fquadron. That the 
 iiaip waa loft, with great part of the property on 
 board. That the intereft intended to be covered 
 was that of the officers and crews of the fquadron, 
 in the prize. The queftion was, Whether this 
 be an infurable intereft ? 
 
 Lord
 
 What is an insurable Interest. 227 
 
 Lord Mansfield. — The alTured certainly did 
 not confider this as an evalion of the ftatute 19. 
 Geo. II. And the infurers knew the whole cir- 
 cumftanccs at the time they underwrote. They 
 had been in the Gazette. 
 
 There are here two queftions ; i/?, Whether 
 the lea-officers had an intereil vefted in them ; 
 2^/j', Whether they might iniure upon the coti- 
 tingejicy of their afterwards obtaining fuch an 
 intereil. 
 
 The prize-aft and proclamation produce an 
 actionable intereil ; they give the navy " all the 
 ** fhips they Ihall take." There can be no dif- 
 ference between a fole and a joint capture. The 
 expreffion, " All they fhall take," mull equally 
 apply in the one cafe as in the other, to " all 
 " they Ihall be found entitled to by the cap- 
 *' ture.'* 
 
 But belides, the Crown has long been in ufe to 
 grant captures to the taker ; here the alfured have 
 poffejjioriy with expe6lation founded on univerfal 
 praclice. In order to render infurance a contrail 
 of indemnity, an intereil on the part of the alfur- 
 ed is necelTary ; but no particular form of intereil. 
 It is fufficient, if the contingency be of fuch con- 
 fequence, thatlz/zflj be a lofer if it does not hap- 
 pen. Mr Holford infured Lady Lade's not hav- 
 ing a fon ; the event deprived him of tha chance 
 of an ellate ; and this was an infurable, though no 
 legal intereil. In Grant v. Parkin/on, it was held 
 
 that the profits of a voyage were infurable ; an 
 
 agent
 
 228 Nature of an Insurance Contract, 
 
 agent of prizes may infure his chance of profit ; 
 yet in neither of thefe cafes, is there an intereft 
 vefled in the afTured. The infurance is good 
 on both grounds *. Judgement for the plain- 
 tiff. Eafl. 22. Geo. III. B. R. MS. 
 
 The fame point is illuftrated by the cafe of 
 Grant V. Parkinfon, (to be afterwards ftatedf,) 
 where the aiTured, who had a contracl to fupply 
 the army with fpruce beer, had procured infur- 
 ance on m.olalfes,— to the extent of L. looo, 
 " being profits expeded to arife from the cargo, 
 " in the event of arriving." 
 
 This doctrine, however, as was formerly men- 
 tioned, is not univerfally received abroad. And 
 hence arifes the prohibition, in fome of the fo- 
 reign ordinances of infurance on freights. 
 
 An infurance on freight, is obvioufly in fome 
 degree an infurance of expelled profit, and not 
 from pofitive lofs. No doubt, the freight may 
 be confidered as partly correfponding to the 
 outfit of the veffel ; for the expences incurred 
 in fitting her out, and in laying in provifions 
 and ftores for the adventure, may be confidered 
 as incurred for the fake of the freight. At the 
 end of the voyage the fiiip's llores may be fup- 
 pofed to be confumed, and the repairs made, 
 with a view to the voyage, to be worn out ; 
 and the owner receives indemnification for 
 
 them 
 
 * This cafe likewife included a queftion with regard to 
 the effed of average lofs, on a valued policy. See below. 
 Part 2. ch. 3. § 2. 
 
 f See below, ejufd, \
 
 What is an insurable Interest. 229 
 
 them by the freight. Thefe expences, with 
 the intereft that falls due upon them during 
 the courfe of the adventure, may be inlured 
 either as a part of the value of the Jhip, or un- 
 der the feparate denomination oi freight. And 
 fo far the policy will ft ill be a contract pro- 
 viding againft a politive lofs. But, as there is 
 included under the idea oi freight^ fomething 
 which the ftiip may earn beyond an equivalent 
 for the adual outlay, the bargain becomes an 
 infurance upon an expeded profit. 
 
 The ordinances of France and Coningfberg 
 prohibiting all infurance " on the freight which 
 *' veflels Ihall earn, and on expeded profits," 
 were formerly quoted. — Thofe regulations, it 
 muft be obferved, do not prevent the owner or 
 freighter from fecuring himfelf completely from 
 pofitive lofs, becaufe he may ftill infure his out- 
 fit, and the intereft of his money, under the 
 names of ftiip and cargo. And they appear 
 calculated to have one good effecl, in prevent- 
 ing the expence of outfit from being doubly 
 infured. For by the name of freight, is fome- 
 times meant the grofs fum which the owner re- 
 ceives for the fervice performed by the fhip ; 
 and which contains an indemnification to him 
 for his outlaid expences, and for the intereft 
 of money, befides the clear profit he draws from 
 the adventure. In this manner the outfit may 
 be doubly infured, once under the name of 
 freight, (meaning grofs freight), and anotlicr 
 
 time
 
 230 Nature of an Insurance. Contract. 
 
 time under the name of fhip and cargo. An 
 impropriety which is eflfedlually prevented by 
 the French ordinance. 
 
 In England, where the idea of an infurance 
 
 on expeded profit is admitted in every extent, 
 
 a diflinclion is made between grofs and nett 
 
 freight, which has the fame effed of preventing 
 
 a double infurance on the outfit. 
 
 By nett freight y is^meant the clear profit arifmg 
 from the voyage to the fhip-owner; what re- 
 mains from the fhip's earnings, after dedudion 
 of all charges in the courfe of the adventure. 
 This feems to be alluded to by the ordinance 
 of Amfterdam, when it fays, " Freight, and the 
 " ordinary charges, ufually called common ave- 
 " rage, (deduSling men^s wages, and other charges 
 " that mujl have been paid out of it if the Jhip 
 " had arrived), may be infured and recovered 
 *' fo far as it oan be proved to what the gain or 
 " overplus from the voyage would have a.mount- 
 " ed." 
 
 Suppofe the grofs freight of a Ihip from Ja- 
 maica to London, that is, the fum which the 
 owners will receive on the delivery of the cargo, 
 to be, - - - L. looo o o 
 
 The provifions and outfit, with the 
 
 mafter and crew's wages due to 
 
 them for the voyage, but which 
 
 they would lofe if the Ihip never 
 
 arrived, may be - - 300 o o 
 
 L. 700 o o 
 L. 700
 
 What is an insurable Interest. 231 
 
 L.700 appears, therefore, to be the nett freight^ 
 being the fum which the owners would put in 
 their pocket, in the event of the fhip's arrival. 
 
 Agreeably to this diflindion, it Ihould feem 
 that a perfon may infure all the aftual expence, 
 with the intereil of money, in relation to his 
 fhip, by an inlurance onfiip ; but not the ex- 
 peded profit he is to derive from the lliip's earn- 
 ings. He may fecure the expeded profit to be 
 drawn from his fliip, by an infurance on freight, 
 being underftood in England by that expreffion, 
 to infure his nett freight, that is, his pojttive gain, 
 as diftind from his expence incurred. 
 
 In the fame manner, he may infure the whole 
 charges attending his goods, by an infurance on 
 cargo. And he may fecure an expeded profit 
 on his merchandifes by a provifion to that elFed ; 
 the moft common mode of executing this, is by 
 fpecifying the cargo, and valuing it in the policy 
 at fo much a pipe, hogfliead or ton. 
 
 A reififiirance, though it feems to fuppofe a fo- 
 lid intereil in the alfured, is prohibited exprefsly 
 by § 3. of the ftatute 19. Geo. II. above quoted. 
 
 By reinfiirance, is meant, when the underwriter 
 withdraws himfelf from rilk by procuring an in- 
 furance in his own favour. It correfponds to 
 hedging in other contrads upon a future chance. 
 A m«/z/rfl7zc^ is carefully to be diilinguifhed from 
 a double infurance. The latter takes place where 
 the ajfured is twice fecured in the fame fubjcd ; 
 
 the
 
 232 Nature of an Insurance Contract. 
 
 the former, where the underwriter in one po- 
 licy becomes the almred in another, upon the 
 fame fubjed, with the view of withdrawing him- 
 felf from hazard. 
 
 The claufe in ftatute 19. Geo, II. above quoted, 
 had been intended to prevent a mode of gam- 
 ing by reinfurance, then in vogue in London. 
 Mr Magens conliders the remedy as a hard one, 
 by depriving merchants of the power of with- 
 drawing themfelves from infurance bufinefs, 
 when their circumllances may render it highly 
 expedient. 
 
 But furely of all the fpecies of gaming in in- 
 furance, that now under conlideration is the worft. 
 For as reinjuranceh a meafure fuppofed to be fallen 
 upon after the commencement of the voyage, or 
 after the veflel has been long at fea, there is more 
 danger of its being fuggefted by private grounds 
 of knowledge, with refpedl to the hazardous fitu- 
 ation of the fubjed infured. Such a bargain, 
 by which a man endeavours to get clear of his 
 former engagements, feems to convey fome fuf- 
 picion of a concealed motive. For this reafon, 
 reinfurances fuppofe a higher premium than any 
 other kind of policy ; and if they were commonly 
 pradlifed, would tend more than any other, to 
 increafe the expence of infurance to the real trader. 
 The limitations, therefore, made by the ftatute 
 upon this pradlice, feem not inexpedient, and as 
 they were intended to prevent a concealed mode 
 
 of
 
 What IS AN INSURABLE Interest. 223 
 
 of wagering, had probably become necelTary. 
 At the fame time the exceptions as to death and 
 infolvency, feem fufficiently well calculated to 
 prevent hardfhips from fuch a prohibition. 
 
 The intereft of an underwriter to be relieved 
 from the hazard of his own contrad, is univer- 
 fally fullained abroad, as a proper fubjed of in- 
 furance; and molt of the foreign mercantile 
 Hates authorife reififurance by an exprefs regu- 
 lation *. 
 
 There is another intereft which muft be dif- 
 tinguifhed, and which is in reality very different 
 from this, although they have fometimes been 
 confounded ; an intereft in the fohency of the 
 underwriter. Indeed this appears fo totally dif- 
 tind: from the reinfurance laft mentioned, that it 
 does not deferve to be called by the fame name, 
 much lefs to be confidered as regulated by the 
 fame principles, or as falling equally under the 
 ftatutory prohibition of wager-policies. 
 
 A reinfurance is a hedging contrad, by which 
 the underwriter withdraws himfelf from all rilk. 
 An infurance againfi infolvency is a contrivance 
 by which the afllired ftrengthens his former fe- 
 curity. It is difficult to conceive a fairer inter- 
 eft, or one more clearly adionable than that which 
 a creditor has to recover payment of his juft 
 debt. Such a fecurity is univerfally permitted 
 among the foreign mercantile ftates. And it is 
 not prohibited in Britain ; for it cannot be with- 
 
 Gg in 
 
 * See MagenSf and the commentators, pajim.
 
 234 Nature of an Insurance Contract. 
 
 in the meaning of the word reinfurance in the 
 ftatute 19. Geo.ll. ; neither from what has been 
 formerly ftated upon that fubjed, does it appear 
 to be within the mifchief of a wagering contrad. 
 It is accordingly believed to be a frequent prac- 
 tice, boih in England and Scotland, for the mer- 
 chant to infure the folvency of his underwriters ; 
 and it meets with full fupport from the law. 
 
 Where the aflured has lent money on the fe- 
 curity of the Ihip's bottom, this appears a fuf- 
 ficient intereft to give validity to the policy. 
 Thus, by the Ordinance of Hamburgh, " when 
 " any perfon lends money upon bottomry, he 
 " may make his alTurance to the full, for prin- 
 " cipal, intereft, and premium* ." 
 
 France feems to vary from the other ftates of 
 Europe in this particular, fo far as to reftritt an 
 infurance on a bottomry intereft, to the princi- 
 pal fum and premium. This proceeds upon their 
 notion of preventing an infurance on expecled 
 profit. *' The lenders on bottomry Ihall not in- 
 " fure the profit on the fum lent, under the pe- 
 " nalty of the policy being invalid, and of cor- 
 ** poral punifliment f .'* 
 
 A doubt has been ftarted by Mr Magens, 
 
 of which it may perhaps be difficult to find a fa- 
 
 tisfactory folution. Whether an infurance on a 
 
 bottomry intereft does not fall under the ftatute 
 
 19. 
 
 * See Ord. Hamb. No. 930. Ord. oi F/or. No. 1 1. oiAm" 
 fierd. No. 531, 532, 6'c. 
 
 fOr^.Fr. No. 676, 677.
 
 What is an insurable Interest. 2^<: 
 
 ig.Geo.ll. as a reinfurance? For the borrow- 
 er agrees to pay a high intereft for the I'um ad- 
 vanced. The lender agrees to lofe the princi- 
 pal, if the (hip be loft, and looks to the fhip on- 
 ly for fecurity ; fo that the lender, in confidera- 
 tion of the high intereft or profit which his 
 money is to bear, undertakes the fea-rilk, and 
 infures the borrower to a certain extent. And 
 if the lender gets himfelf infured, is not the con- 
 trad: a reinfurance ? 
 
 However ingenious this idea of Mr Magens 
 may appear, it h^s met with no attention ; an in- 
 furance on a bottomry or refpoiidentia intereft 
 being univerfally admitted in England. The li- 
 mitations to prevent gaming in this fpecies of 
 infurance, by the ftatute Geo. II. were formerly 
 quoted. 
 
 It only remains to be obferved, that when in- 
 furance is made upon fuch an intereft, this cir*- 
 cumftance muft be exprefled. 
 
 In the cafe Glover v. Black, where an infurance 
 had been made " on goods and vierchandife^'* 
 and the intereft appeared to be a refpondentia 
 bond over the cargo, it was found, that the 
 plaintiff could not recover. 3. Burr. 1394. In a 
 fubfequent cafe, however, it has been found, 
 that a refpondentia intereft may be covered by an 
 infurance '* on goods, fpecie, and effc^s ;'''' fuch 
 being the ufage. Park'^s Syjlcm^ p. 13. Gregory 
 
 V. Chrijlie. 
 
 In
 
 2^6 Nature of an Insurance Contract. 
 
 In Scotland no inftance has yet occurred, in 
 which an infurance on a bottomry intereft has 
 been made the fubjed of legal difcuffion. 
 
 It only remains to ftate a few cafes, in which 
 there appeared to be no fufficient intereft in the 
 afTured. 
 
 Kent v. Bird. 
 The plaintiff, a furgeon on board an Eaft In- 
 diaman, agreed to pay to the defendant, a paiTen- 
 ger on board the fame Ihip, the fum of L. 20 Ster- 
 ling, at the next port the fhip fhould arrive at, 
 provided the defendant undertook, that the fhip 
 fhould fave her pafTage to China that feafon , 
 and in cafe flie did not, then that he would pay 
 to the plaintiff the fum of L. 1000 at the end of 
 one month after the arrival of the faid fhip in 
 the river Thames. Lord Mansfield and the 
 Court of King's Bench, found this to be a wager- 
 policy within the ftat. 19. Geo. II. c. 37. and there- 
 fore void. Cowper's Reports y iid April 1777. 
 
 Lawry, a7id another y againjl Bourdieu. 
 
 The plaintiffs had lent to Lawjbn, captain of 
 the Holland Eafl Indiaman^ L. 26,000, for which 
 he had given them a common bond in the penal 
 fum of L. 52,000. While he was with his fhip 
 at China, the plaintiffs got a policy of infurance 
 underwritten by the defendant, and others, 
 which was in the following terms : " At and 
 ^'' from China to London^ beginning the adventure 
 
 " upon
 
 
 What is an insurable Interest. 237 
 
 " upon the goods from the loading thereof on 
 *' board the faid fhip at Canton in Chinas &.c. 
 " upon the faid ihip, 'i^c. from and immediately 
 " following her arrival at Canton in China, valued 
 *' at L. 26,000, being the amount of Captain 
 ** Patrick Lawfon's common bond, payable to 
 the parties, as fliall be defcribed on the back 
 of this policy ;" — ** and in cafe of lofs, 
 no other proof of intereit to be required 
 " than the exhibition of the faid bond ; warrant- 
 " ed free from average, and without benefit 
 " of falvage to the infurer." At the head of 
 the fubfcription was written, ^^ on a bond as 
 *' above exprejfed.'''' — Captain Law/on failed from 
 China, and arrived fafe with his privilege, (as 
 it is called,) or adventure, in London, on the ift 
 of July 1777, none of the events infured againft 
 having happened. The receipt of the premium 
 was acknowledged on the back of the policy. In 
 1780, the infured brought this action for a re- 
 turn of the premium, on the ground, that the po- 
 licy being without intereft, the contra6t was void. 
 Upon the trial at Guildhall, Lord Mansfield 
 diredted a verdict for the defendant, on this 
 footing, that in pari de/iclo, melior eft condi- 
 tio pcjjidentis ; which was found accordingly. 
 But his Lordfliip having afterwards entertained 
 fome doubt, allowed a motion for a new trial, 
 when he returned to his firll opinion. The 
 prefent, he obferved, was lUidly -a. gaming poli- 
 cy \
 
 tt 
 
 138 Nature of an Insurance Contract. 
 
 cyj the plaintiffs fay, " we mean to game, but 
 we give our reafon for it ; Captain Lawfori 
 owes us a fum of money, and we want to be 
 " fecure, in cafe he fhould not be in a fituation 
 " to pay us." It was a hedge. But they had no 
 intereft ; for if the fhip had been loft, and the 
 underv/riters had paid, ftill the plaintiffs would 
 have been entitled to recover the amount of the 
 bond from Law/on, The policy therefore was 
 illegal, and the Court will not interfere to affift 
 either party. In pari deliSlo, l^c. The Court, 
 by a majority, difcharged the rule. Doug. Rep, 
 i^th Nov. 1780. 
 
 KuLEN Kemp, and others ^ againfl Vigne. 
 
 Upon a motion by the plaintiff, to fet afide 
 a non-fuit, the following fads were reported by 
 Jujlice BuLLER : — That the infurance was upon 
 goods on board the fhip Emanuel, at and from 
 Falmouth to Marfeillesy warranted a Danijh fhip j 
 and on the policy was this memorandum : " The 
 ** following infurance is declared to be on mo- 
 " ney expended for reclaiming the fhip and 
 " cargo, valued at the fum, which fhall be de- 
 " clared hereafter. The lofs to be paid in cafe 
 *' the Jh'ip does not arrive at Marfeilles, and 
 " without farther proof of intereft than this 
 ** policy ; warranted free from all average, and 
 ** without the benefit of falvage." 
 
 It appeared that the plaintiffs were proprietors 
 of the cargo but not of \htjhip. That the fhip 
 
 originally
 
 What is an insurable Interest. 239 
 
 originally failed with the cargo on board from 
 Riga on a voyage to Marfeilhs, and that an 
 infurance had been efFeded at Bremen upon the 
 cargo for that voyage ; in the courfe of which 
 fhe was taken, and brought into Falmouth by an 
 EngUJh privateer. That fentence of condemna- 
 tion had been there obtained, which was after- 
 wards reverfed, upon the prize having been 
 proved to be a neutral lliip ', but the expences 
 of procuring that reverfal were ordered by the 
 Admiralty Court to be a charge upon the car- 
 go. The plaintiffs agent accordingly paid the 
 fum of L. 1031, 14 s. for the expences of re- 
 claiming the fliip and cargo, and immediately 
 got the policy in quellion effected. 
 
 In the February following, the fhip fet fail 
 from Falmouth with the original cargo on board, 
 in the profecution of her voyage to Marfeilles ; 
 but on the 26th of the fame month, before her 
 arrival there, (he was captured by a Spa?iiJ7j 
 fhip, and carried into Ceuta in Spain, where flie 
 was again condemned. An appeal was brought 
 in the fuperior court of Madrid^ which promifmg 
 to be of long continuance, the cargo was ordered 
 to be fold, and the proceeds to be brought into 
 court, to wait the event of the fuit. — In May 
 1783, the veffel was reftored by fentence of the 
 court, and the furplus of the proceeds, which 
 arofe from the fale of the cargo, was paid to 
 the owners, deducing the expences incurred in 
 
 Spain
 
 240 Nature of an Insurance Contract. 
 
 Spain in profecuting the appeal. After all the 
 charges paid, there only remained twenty-fix 
 rix-dollars. As foon as the fhip was liberated, 
 flie failed from Ceuta to Malagttf in order to re- 
 Ht, and having there made the necelTary repairs, 
 fet fail for Bremen^ and in that voyage was 
 
 lofi. 
 
 The infurance made upon the cargo at Bre- 
 men has been paid. 
 
 The declaration averred, that " whilji the 
 *^ Jinp was proceeding in her /aid 'voyage from 
 ** Falmouth to Marfeilles, and before fie could 
 " arrive at Marfeilles,^;? was captured by the 
 " Spaniards, and thereby the faid Jhipy and alfo 
 "' the goods and merchandifes on board her, were 
 <* totally lofi to the plaintiffs.'''' 
 
 Mr J. BuLLER proceeded to obferve, that at 
 the trial it was obje6led for the defendant, 
 ly?. That this was not an infurable interelt ; 
 and, 2dly, That the plaintiffs could not recover 
 upon the policy in this form of declaring, for 
 they had flated the lofs to have happened by 
 capture ; whereas, though the velTel was captu- 
 red, yet having been afterwards reftored, Ihe 
 might have reached her deftined port notwith- 
 ftanding the capture, in which cafe the under- 
 writers would have been difcharged by the 
 terms of the memorandum : And that he being 
 of that opinion, had non-fuited the plaintiffs.— 
 After argument by counfel. Lord Mansfield 
 faid, the anfwers to this cafe are decifive : 
 
 This
 
 What is an insurable Interest. 241 
 
 This is a wagering policy. — The intereft of 
 the plaintiff was money laid out in reclaim- 
 ing the cargo. The event infured was the fafe 
 arrival, not of the cargo, but of the /hip at Mar^ 
 feilles. It is the fame as if the event infured 
 had been the arrival of any other fhip at Mar- 
 feilles. — As this is a wager, the affured cannot a- 
 bandon their intereft, although the objed of the 
 voyage Ihould be defeated by any accident in 
 the courfe of it. After the capture, they might 
 ftill have purfued their voyage to Marfeilles ; 
 but did not. 
 
 WiLLES, J. — Doubted whether the plaintiffs 
 had not an infurable intereft, but was clear 
 upon the other points. There was a deviation 
 in the veffel not following out her voyage to 
 Marfeilles. And the plaintiff has declared for 
 a lofs by capture, whereas the policy might 
 have been complied with by the fhip's going 
 to Marfeilles, notwithftanding the capture. 
 
 AsHURST, J.— This is a wagering policy ; in 
 which cafe, the party infured takes upon him- 
 felf to do every thing which the owners of the 
 {hip might have done ; and they might have 
 direfted the fliip to Marfeilles.— It is alfo cer- 
 tain, that the party infuring a fliip to any place 
 rauft ufe all due diligence to further her voyage 
 
 thither. 
 
 BuLLER, J.— It would be a fufficient objedion, 
 
 that the lofs is averred to be by capture.— But 
 
 Hh upon
 
 242 Nature of an Insurance Contract. 
 
 upon the merits, although the parties feem to 
 have had it in view to infure a real intereil, they 
 have not expreffed thefe intentions in the poli- 
 cy. — The Court is bound to look to the inftru- 
 ment, and cannot help them. The policy is 
 not adapted to the real truth of the cafe. — ^Rule 
 difcharged. Termly Reports. Trin, 1786. 
 
 6. In order to render effedlual the different 
 ftatutory provilions that have been mentioned^ 
 for the prevention of gaming infurances, it is 
 abfolutely neceflary, that the policy Ihould, in 
 fome way or other, point out the perfon for 
 whofe benefit the fecurity is taken. 
 
 To this branch of the fubjecl, therefore, be- 
 longs the conlideration of that claufe in the po- 
 licy which fpecifies the name of the ajfured, 
 " A B, G D, and Co. as well in their own name, 
 ** as in the name of every one to whom the fame 
 ** fhall belong, do make infurance, and caufe 
 *■* themfelves to be alTured, y^." 
 
 It is of great moment, in order to prevent 
 fraudulent dealing with refped to the affured's 
 intereft, that his name fhould be expreffed in 
 the policy, and not left blank, to be filled up at 
 a fubfequent period* By the foreign ordinances, 
 accordingly, it is in general provided. That 
 " no affurance fhall be made, if the name of 
 *' the pe4-fon that caufes the fame to be done, 
 *' fliall not be clearly and exprefsly mentioned 
 ^' in the policy, before any aflurer underwrites 
 
 " it.
 
 What is an insurable Interest. 24^ 
 
 " it. Nor Ihall a blank fpace be left in poli- 
 ** cies, to fill up the name ; for in that cafe, the 
 " fame fhall not be valid, nor the aflurance of 
 "anyefFedl*.'' 
 
 The Amjlerdam regulation requires, that the 
 infurers fhould be made acquainted with the 
 name of the perfon who gave the order to in- 
 fure. At Stockholm^ ** the name of the alfured 
 *' muft be inferted in the policy ; but any one 
 ** infuring by commillion, may either have his 
 " own name inferted, or that of his conllituent." 
 Ord. Stockh. No. 1 031. 
 
 Hamburgh is believed to be the only (late that 
 has exprefsly allowed ** the name of the alTured 
 " to be left out, and the policies to be filled up 
 " to the bearer only.'* Ord. Hamb. No. 875. 
 
 In Britain, where there have been very few 
 pofitive ftatutes upon infurance, it was under- 
 ftood, in practice, that a policy, in which the 
 name of the affured had been left blank, was 
 neverthelefs a valid agreement in favour of the 
 perfon who could fhow an intereft at the date 
 of the contract. Such policies, however, were 
 unufual ; but it was extremely common for the 
 broker to infert his own name only in the po- 
 licy, leaving it to be afcertained aliunde j on 
 whofe account the infurance was made. 
 
 This 
 
 * Ord. Gen. No. 146. j oi France, No. 665. j oi Koning/bcrg , 
 No. 773. J Copenho No. 1264.
 
 244 Nature of an InsuPvAnce Contract., 
 
 This pra6lice, however, mufl naturally have 
 given rife to frequent difputes with regard to the 
 perfon who had the intereft at the date of the 
 contradl ; and it was calculated to favour col- 
 lufive dealing between the broker and afTured. . 
 
 By the llatute 14. Geo. III. c. 48. § 2., it had 
 been provided, that " it fhould not be lawful 
 " to make any policy on lives, or on a?iy other 
 " event whatever, without inferting the name of 
 " the perfon for whofe ufe, benefitj, or on whofe 
 ■" account, fuch policy is made." 
 
 This ftatute did net extend to policies on 
 ihipping and mercbandife ; and a further ena6l- 
 ment therefore took place, fo lately as the 1785. 
 
 The preamble fets forth, that the making in- 
 furances on ihips and effed:s, without fpecifying 
 the names of the perfons on whofe account they 
 are effeded, hath been mifchievous, and produc- 
 tive of great inconveniencies ; it is therefore 
 enaded, that '* after 5th July 1785, no perfon 
 ** redding in Great Britain, Ihall make policies 
 *' of alTurance upon his intereft in any fhips or 
 ** goods, without inferting therein his own name, 
 ^* as the perfon interefted, or the name of his 
 "agent, effedting the fame, as agent. And per- 
 ** fons, not reliding in Great Britain, fhali not 
 ** make fuch policies of alTurance, without in- 
 ** ferting therein the names of their agents ; and 
 f* eyery policy underwrote contrary to the true 
 ** meaning hereof, fliall be void." 25. G^o. III. 
 cap. 44. 
 
 This
 
 What is an insurable Interest. 245 
 
 This ftatute is explained by the following de- 
 cilion. 
 
 Pray and others, ag'abi/l Edie. 
 
 The plaintiffs, who lived in Georgia, had for- 
 merly been owners of the veflel infured, but, be- 
 fore May 1785, had transferred their property 
 in her to one Pierce, who refided in the fame 
 country. The names of the plaintilFs were at 
 the head of the policy, which was underwritten 
 by the defendant in September 1785 ; and the 
 declaration Hated, that they made it for the be- 
 nefit of Pierce, in whom the interelt was aver- 
 red to be. 
 
 Upon thefe facts, two queflions arofe, Jirji, 
 Whether, when an agent effeds a policy for his 
 principal refiding abroad, the ad: of the 25. 
 Geo. III. cap. 44. requires, that fuch agent's 
 name fhould be inferted eo nomine, as agent ? 
 
 idly. Whether, under the fame ad, it is ne- 
 celTary that fuch agent, who effeds the policy 
 for his principal refiding abroad, fhould himfelf 
 refide in England ? — 
 
 For the plaintiffs it was argued, that the ad 
 being rigorous againft foreigners, is unfavour- 
 able. That with refped to the prefent plain- 
 tiffs, it has the effed of an ex pojl faclo law, 
 as they could not be apprifed of it. With re- 
 gard to the firfl objedion, it does not appear 
 by the words of the ad, that in cafe the prin- 
 cipal refides abroad, the agent's name miifl be 
 inferted eo nomine, as agent. The fccond claufe 
 
 of
 
 S46 Nature op an Insurance Contract. 
 
 of the ftatute declares^ that the name of the agent 
 fiiall be inferted, but that is only defcriptive of 
 the perfon, not of his charader. From the pre- 
 amble, the ad feems intended merely to guard 
 againfl the efFeding policies in blank. As to the 
 fecond objection, there are no words in the 
 ftatute which require, that the agent fhould live 
 in England. Beiides, by figning the contradl, 
 the underwriter has precluded himfelf from 
 taknig advantage of the law. 
 
 The counfel on the other fide was llopt by the 
 Court. 
 
 Lord Mansfield, C. J. — There is no doubt as 
 to the conftrudion of the ad. It is intended to 
 remedy inconveniencies which had arifen from 
 omitting to infert the names of the perfons for 
 whom policies are effeded. This is done by 
 enading, that the name of the principal himfelf, 
 or that of his agent, muft be inferted. If the 
 agent were not to be named in the policy, eo no- 
 mine, as agent, the public would ftill be left ig- 
 norant who the infured was, and the principal 
 intention of the ad would be defeated. The 
 fame muft hold in the cafe of the infured living 
 abroad, who cannot infure in his own name. 
 
 I am alfo inclined to think the other objec- 
 tion good, as to the relidence of the agent ; but it 
 is unneceflary to give an opinion upon this point. 
 
 BuLLER, J. — The word agent muft be taken 
 in both claufes in the fame fenfe.-^The view 
 
 of
 
 Effect of a valued Policy. i^J 
 
 of the Legiflature requires it. No doubt, that he 
 Ihould, by the act, alfo refide in Britain. 
 
 Per Cur. Judgment for the defendant. Termly 
 Reports, frin. 1786. 
 
 7. Having confidered the reitriclions which 
 the Legiflature has thought proper to impofe in 
 relation to wager-policies, and the precautions 
 it has adopted, to render thofe reitriclions effec- 
 tual, Vie. may now return to examine the na- 
 ture of an infurance contract, when conftituted 
 upon a legal intereit. 
 
 And here a conlideration of importance may 
 be recalled to mind ; that a policy upon intereft 
 is a contrad of indemnity ; confequently, the 
 amount of the aifured's intereit muft regulate 
 the extent of the infurer*s obligation. But how 
 is the amount of intereit to be verified ? This 
 leads to examine more particularly the difference 
 between an open and a 'valued policy. 
 
 Where, in the lirlt place, the policy is open^ 
 that is, where the value of the fubjed: infured 
 is not fixed by previous eltimate, the extent of 
 the underwriter's obligation muft, obvioufly, 
 be proportioned to what the amount of that in- 
 tereft Ihall appear to be, from evidence. And 
 here, it is the actual damage on fliip, goods and 
 freight, that muft be paid ; the probable value 
 of the fhip at the date of the lofs, with ex- 
 pence of outfit ; the prim€ cofi of the cargo, ap- 
 pearing by the invoices and bill of loading, with 
 charges ; and the adual nett freight, if freight 
 
 was infured. 
 
 But
 
 24^ Nature of Insurance Contract. 
 
 But where the amount of the interell is fixed 
 by a 'valuing clauje, the intention of fuch pre- 
 vious eftimate is to fuperfede all proof upon this 
 fubjed ; and the prime cq/l, or adual lofs, mull 
 be held as afcertained by the exprefs agreement 
 of parties. 
 
 Much difference of opinion feems to have' 
 arifen, about'the conftrudtion, andefFed, of claufes 
 of this nature, whenever it appears that the fub- 
 jed has been eflimated above its real value. 
 
 On the one hand it has been obferyed, that 
 the confequence of an overvaluation , if it fhall be 
 fuftained to the whole extent, is to give the af- 
 fured an intereft to deftroy the fhip and cargo ; 
 that fuch an interpretation, therefore, might be 
 exceedingly dangerous, and might open a door 
 to many frauds, to the prejudice of underwriters : 
 And that, even fuppofing the overvaluation to 
 have taken place innocently, there is an abfur- 
 dity in allowing the affured to derive an advan- 
 tage from his own error and miftake. It has 
 been therefore urged, with no fmall plaufibility, 
 that valuing claufes fhould receive a ftridl inter- 
 pretation : That they ought to be allowed no 
 farther effed than merely to eftablifli a prefump- 
 tion of value, until the contrary be proved. But 
 when the underwriter does produce evidence 
 that the valuation is erroneous ; — that an over- 
 valuation has taken place ; — the miftake ought 
 to be corredled. If the overvaluation appears 
 to have taken place bo?ia fide^ the infurance 
 
 ought
 
 Effect of a valued Policy. 249 
 
 ought to be reduced to the real interell ; \^ frau- 
 dulent Jy,, the policy ought to be annulled altoge- 
 ther. 
 
 In fupport of this opinion, feveral foreign re- 
 gulations are produced. Thus, by ordinance of 
 France : " If the infured fues for payment of 
 '* the fum infured, above the value of bis effevls 
 *' or ifiterefl, he fhall be punilhed. — We forbid 
 " the making any infurance or reinfurance on 
 " goods or effects above their real value, in one 
 " or more policies, under the penalty of fuch in- 
 ** fu ranee being invalid, and confifcation of the 
 *' goods." 
 
 By the ordinance of Coningjherg^ *' No perfon 
 •* is to offer any thing to be infured above the 
 ** legal and conflituted value. If any one, from 
 *' an eager defire of gain, Ihall run the riik of 
 *' infuring a fhip or goods to a greater fum than 
 *' their equitable value, he fhall be feverely pu- 
 *' nifhed according to the circumftances ; the 
 " infurance fhall be void, and the premium fiill 
 " to the infurer ; but if, by accident, and with- 
 *' out any evil defign of the party infured, the 
 *' value infured exceeds the ufual and equitable 
 '* worth of the fhip or goods, the infurance ihall 
 *' indeed remain in its full force ; but the in- 
 " furers, in cafe of lofs or damage of the goods 
 *' infured, fhall not be bound to pay more than 
 ** their adual worth, and in proportion to the 
 " fum for which they refpeclively bound them- 
 *' felves ; like wife what overplus they received 
 
 I i " ill
 
 250 Nature or an Insurance ContracTo 
 
 " in the premium on account of this abatement, 
 *' after dedudlion of a half ^<?r cent, they are to 
 " return to the parties infuring.*' 
 
 And by the regulations of Amjlerdam, " no 
 " valuation in the policy Ihall take place, of thofe 
 " goods and efFedls, whereof the real value can 
 ** be produced *." 
 
 From the fame convidlion of the danger of 
 fraud, in allowing overvaluations to be efFedlual, 
 we find other nations impoling reftraints in this 
 refped, and eftablilhing a prefumption of fraud, 
 when the ejlimated fhall be found to exceed, in 
 a certain degree, the real values. Thus the or- 
 dinance of Rotterdam (in 1721) fays, ** That in 
 ** cafe goods be fent in return for others, and 
 ** the true value of the returns cannot be afcer- 
 ** tained, then the Chamber Ihall fet a value on 
 ** them, not exceeding 50 per cent, above the capi- 
 ** talfent out.^'' By ordinance of Middlehurg and 
 Copenhagen alfo, " Returns from the Eajl Indies 
 *' cannot be valued higher than double of the 
 ** capital fent out.'* 
 
 In England it feems alfo to have been at 
 one time intended to fubjedl this matter to 
 fome regulation ; and with a view to prevent 
 fraudulent overvaluation, it was propofed, a- 
 mong the refolutions of the Commons, in 1747, 
 to enadt, that in order to a valuation being con- 
 
 fidered 
 
 See Magens, vol. ii. />. 136. To the fame efFed we have 
 the opinion of Roccus j — and of that ancient Code, the Con- 
 Jdato del Mare of Barcelona,
 
 Effect of a valued Policy. aqi 
 
 iidered as the meafure of a lols, goods ought to 
 be valued, not in general, but particularly, by 
 weight, meafure or package, and each fort va- 
 lued apart. It was propofed, that no valuation 
 on Jljip fliould be valid, if it exceeded a certaui 
 proportion of the drip's real worth. — Thefe re- 
 gulations were never carried into effcfl ; they 
 (how, however, the fenfe of mercantile people 
 as to the danger of overvaluations. 
 
 But, it may be alked, do not thefe valued poli- 
 cies fall within the ftatute 19. Geo. II. at lealt fo 
 far as refpeds the overvaluation ? For although 
 they are not wagers altogether, yet are they not 
 wagers fo far as the infurance exceeds the in- 
 tereft ? 
 
 It may readily be allowed, that Q.ytxy fraudu- 
 lent overvaluation ought to be attended with 
 the penal confequence of vacating the policy 
 entirely. But it cannot be admitted that fuch 
 a circumftance, if happening by innocent mif- 
 take, Ihould reduce the underwriter's obliga- 
 tion to the real value. By fuch an interpreta- 
 tion, the great object and advantage of thefe 
 valuing claufes, that of precluding a difficult 
 and troublefome proof, would be entirely cut 
 off. Every valued policy would afford room 
 for endlefs cavils and inextricable litigation ; 
 and it woul^ be neceffary that fuch infurances 
 Ihould be entirely laid afide. The policy, there- 
 fore, is in pradlice fupported to the whole ex- 
 tent.
 
 n f- 
 
 52 Nature of an Insurance Contract. 
 
 tent, although there fliould appear to have been 
 an overvaluation. 
 
 At the fame time it muft be fuppofed, that 
 the affured has actually Jbrne ijitereji, and does 
 not appear to have made ufe of the valuation 
 as a cloak to a wager ; otherwife the policy will 
 fall under the ftatute 19. Geo. II. againft gaming 
 infurances. We muft likewife fuppofe there is 
 no proof of fraud in the overvaluation in que- 
 ftion. 
 
 But thefe things being taken for granted, 
 it does not feem necelTary for the alTured, m 
 a valued policy, to prove the amount of his in- 
 terell:, but merely that he had fuch an intereil 
 on board, as might, in his fituation, be natural- 
 ly eftimated at the fum valued ; nor is it of any 
 confequence, although the underwriters Ihould 
 prove fuch overvaluation. 
 
 It is pretty remarkable, that this opinion, with 
 regard to the import and effed: of a valued po- 
 licy, which is at prefent entertained in Britain, 
 feems to have been held very long ago, among 
 the mercantile dates in Italy. 
 
 Cafe. Vincentio de Medicis procured infurance 
 upon " grain, by the fhip La N. S. del Carmine^ 
 " valued at 8000 ducats." The veflel, in the 
 courfe of her voyage, was pillaged by the 
 French. 
 
 Upon an aclion at the inftance of the alTiired 
 
 befoje the maritime court of the city of Mef- 
 
 fina in Sicily, beli4es fome other defences of 
 
 lefs
 
 Effect of a valued Policy. 253 
 
 lefs moment, it was pleaded for the underwri- 
 ters. That the veflel had not been loaded to her 
 ufual extent ; in conlequence of which, the car- 
 go actually on board was at 8coo ducats much 
 overvalued : And that if they were liable at 
 all on fuch a policy, they could only be fub- 
 jecled to the real proven coft of the cargo at the 
 port of loading. 
 
 It was anfwered for Vincentio, that if the ori- 
 ginal cofl of the gain, the expences of outfit, 
 and the intereft of his money, or, what was the 
 fame thing, the price which the cargo would 
 bring at the port of difcharge, were confidered, 
 there would not appear to be any overvaluation ; 
 that he was entitled to infure his expected pro- 
 fits, as well as his pofitive lofs ; or if fuch po- 
 licy was not properly an infurance, it was valid 
 as a wager : That the infurers had precluded 
 themfelves from the objection Hated, by the ex- 
 prefs claufe of valuation in the policy, and by 
 receiving a premium correfponding to the whole 
 fum infured. 
 
 The Court of Mejfnia decided in favour of 
 the affured. See Roccus. Rejp. 31. Anno 1628. 
 
 In England, the courts of law feem, at firll, to 
 have been inclined to open up a valued policy 
 where there was an overvaluation. 
 
 Le Pypre v. Farr. 
 
 On a policy on goods, by agreement " 'valued 
 ^' at L. 600, and the affured not to be obliged to 
 
 " prove
 
 254 Nature of an Insurance Contract. 
 
 *' prove any intereft." The Lord Chancellor or- 
 dered the defendant to difcover what goods he 
 put on board* For although the defendant of- 
 fered to renounce all intereft to the infurers, yet 
 his Lordfliip referred it to a mafter to examine 
 the value of the goods faved, and to dedudl it 
 out of the value or fum of L. 600, at which the 
 goods were valued by the agreement. 2. Vern, 
 715. Mich. 1716. 
 
 An oppofite rule, however, upon this point, 
 is now coniidered as ellablilhed, both by the ge- 
 neral opinion of merchants, and in confequence 
 of the doctrine delivered by Lord Mansfield 
 in the cafe Lewis v. Rucker *. 
 
 ** A valued policy,*' fays his Lordfhip, " is 
 " not to be coniidered as a wager policy, or like 
 " intereji or no interejl j if it was, it would be 
 *' void by the a^ of 19. Geo. II. The only 
 " effedl of the valuation is, fixing the amount of 
 " the prime cojl^ juft as if the parties admitted it 
 " at the trial. But for every other purpofe, it 
 " mull be taken, that the value was fixed in fuch 
 " a manner, as that the infured meant only to 
 " have an indemnity. If it be much undervalued, 
 " the merchant himfelf Hands infurer of the fur- 
 <' plus ; if it be much oveivaluedy it mull be 
 *' done with a bad view, either to gain, contrary 
 " to 19. Geo. II. or withfome view to a fraudulent 
 
 " lofs ; 
 
 * This cafe relates more properly to another branch of the 
 fubjeft, and will be found under the head of Fartial Lofsc 
 Fart 2. cb. 3. § 2. art. 2.
 
 Effect of a valued Policy. 155 
 
 *' lofs ; therefore the infured never can be allow- 
 ** ed in a court of juftice to plead, that he has 
 ** greatly overvalued, or that his intereft was a 
 ** trifle only. It is fettled, that upon valued po- 
 ** licies, the merchant need only prove fovie in- 
 ** tereft^ to take it out of 19. Geo. II. becaufe the 
 *• adverfe party has admitted the value ; and if 
 " more was required, the agreed valuation 
 ** would fienifv nothing. But if it fhould come 
 ♦' out in proof, that a man had infured L. 200c, 
 *' and had intereft on board to the value of a 
 " cable only, there never has been, and there 
 ** never will be a determination, that by fuch an 
 ** evafion the ad of Parliament maybe defeated. 
 " There are many conveniencies from allowing 
 " valued policies ; but where they are ufed 
 '* merely as a cover to a wager, they would be 
 " conlidered as an evaflon. The efFedt of the 
 valuation is only fixing conclulively the prime 
 coft ; if it be an open policy, the prime coil 
 " muft be proved \ in a valued policy it is agreed.'''' 
 1, Burr. 1167. May 2. 1761. 
 
 M'Nair. 1;. Coulter a7id others, 
 
 Robert M'Nair, at Glafgow, had a veflel em- 
 ployed in the Weft India trade, commanded by 
 his fon James M'Nair. After feveral fuccefsful 
 voyages among the Weft India iflands, James 
 M'Nair fent information to his father, that he 
 was about to fail from Barbadoes for Virginia, 
 with a cargo, the value of which, along with 
 
 the 

 
 25^ Nature of an Insurance Contract. 
 
 the fhip, would amount to about L. 1200 cur- 
 rency. 
 
 Robert M'Nair got L. 1000 Sterling infured 
 at Glafgow upon this voyage. The policy was 
 ** on the fhip JanCy and all and whatfoever kind 
 ** of goods laden or to be laden on board of her. 
 *' The faid goods, body, tackle, ^c. valued at 
 " L. 1000 Sterlings without farther account.''^ The 
 veffel was loft off Bermudas. 
 
 It afterwards appeared, that the information 
 given by James M'Nair, with regard to the 
 value of his cargo, was falfe. But there was no 
 evidence that his father Robert was acceflbry to 
 the fraud. — >Ja?nes was afterwards profecuted 
 for having wilfully funk the fhip j but the jury 
 acquitted him of that charge; and found him 
 *' only guilty of having fent fraudulent advices, 
 *' with a view to the infurance." 
 
 The underwriters defended themfelves againft 
 a demand of the L. 1000 infured, upon a variety 
 of grounds. Two of which were, that this was 
 a wager-infurance ; and that there had been 
 a wilful deviation. But after fome fludluation 
 in the deciiions of the Courts of Scotland upon 
 thefe defences, they were both ultimately repel- 
 led upon appeal in 1770. 
 
 Another plea of the infurers was, that as there 
 was here an admitted overvaluation^ they could 
 only be found liable to the extent of the real lofs. 
 Upon this point, the Lords of Seffion pronounced 
 the following judgment : " Find the policy of 
 
 " infurance
 
 Effect of a valued Policy. 257 
 
 infurance " does not, in this cafe, oblige the in- 
 " furers to pay the fums at which the lliip and 
 *' cargo were infured, but only the real value 
 " of the fhip and cargo ; and find the value of 
 " the fhip to be L. 450 Virginia currency." 
 
 Robert J^PNair brought a fccond appeal of 
 this, among other points, in 1773 ; and it was 
 argued in his behalf. That this is a valued policy 
 of both fhip and cargo, where not only the fhip, 
 but a conliderable interell on board are admit- 
 ted to have exifled. — That under fuch a policy, 
 the alTured mufl recover the whole fum in the 
 infurance, as he could not have any claim for a 
 return of premium for fliort intereft, if the fhip 
 had arrived fafe. — That in all valued policies, 
 the alTured having fuch an interell on board, as 
 to take it out of the meaning of the ftatute 
 19. Geo. II., the conftant rule has been to take 
 the quantum of that interell from the value ex- 
 prefTed in the policy, without any other proof of 
 the quantity or value of the goods. 
 
 The Houfe of Peers ** ordered and adjudged 
 " that fo much of the interlocutors of the 8th 
 " February, and 21ft June 1765, as find that the 
 " policy of infurance does not, in this cafe, ob- 
 " lige the infurers to pay the fum at which the 
 *' fhip and cargo were infured, and fo much of 
 ** the interlocutor of the 13th February 1772, 
 " as finds the appellant is not entitled to recover 
 " from the refpondents the L. 1000 Sterling, 
 ** fpecified in the policy, but only a fum equal 
 
 K k "to
 
 258 Nature of an Insurance Contract. 
 
 *' to the damages he fuitained by the lofs of the 
 " fhip Jane^ and her cargo, be reverfed*." Ap- 
 ^' pealed Cafes, Feb. 12. 1773. 
 
 Wilson againjl Wordie. 
 
 Wilfoti, and others, owners of a private Ihip of 
 war, having got notice that fhe had captured 
 a Spanilli merchantman, made infurance upon 
 the prize ; which, in the policy fubfcribed by 
 Wordie, and others, the underwriters, was valued 
 at L. 20,000, including 20,700 dollars in fpecie. 
 The veflel, while lying in Lowlandman' s Bay, in 
 the ille of Jura, was retaken by a French priva- 
 teer, but not before the captors had fent afhore 
 4200 dollars, which indeed appear to have been 
 nearly the amount of the fpecie found on board 
 of the prize. 
 
 When the caufe came from the Court of Ad- 
 miralty in Scotland, before the Court of Seffion, 
 it was pleaded for the infurers : It is an eftablilh- 
 ed maxim refpedling infurances, that the con- 
 cealment or mifreprefentation, even by miftake, 
 of any fuch important fad or circumftance, as 
 makes " the rifle run different from that un- 
 " derftood at the time of the agreement," ren- 
 ders the policy void. The overvaluation in this 
 
 cafe, 
 
 * There feems to be another ground of defence on this cafe, 
 ■which was not flarted. The infurance was made uponyr^w- 
 //m/^«/ information given by James M'Nair, his father's agent ; 
 (See the cafe of Fu%herbert v. Mather.) An affured is re- 
 fponlible for the fraud or negligence of the agent, to whole 
 advices he truils in making the infurance..
 
 Effect of a valued Policy. 259 
 
 cafe, fo undeniable, efpecially as to the dollars, 
 evidently increafed the difadvantage of the infu- 
 rer's lituation, or the rifk which they run, and 
 ought therefore to prove fatal to the claim of the 
 owners. 
 
 But though the policy {hbuld not thus be an- 
 nulled in toUm, it ought, at leaft, in confidera- 
 tion of its objedl, to be reftrided to the lofs truly 
 fuftained. Infurance is a contract of indemnity ; 
 and where no damage can poffibly arife, or fo far 
 as no fubjedl exifts on which it may be incurred, 
 there is no room for any obligation. Hence the 
 defenders are liable according to the true extent 
 only of the lofs in queilion, notwithftanding the 
 overvaluation in the policy. " For no man 
 " fliould be allowed to avail himfelf of having 
 ** overvalued." If the error has arifen, not by 
 mifapprehenfion, but by fraudulent defign, then 
 is the contrad totally vitiated in refped of the 
 infured, whofe crime falls under the cognifimce 
 of the law, while the infurer continues entitled 
 to his full premium. Even wager-policies, as 
 they are ftyled, are exprefsly prohibited by ad 
 19. Geo. II. The valuing of policies, neverthe- 
 lefs, is by no means ufelefs, as it imports an ad- 
 million on the part of the underwriter, which 
 JUperfedes the necejjtty of proof by the alTured ; 
 yet it is evident, that the infurer is not thereby 
 precluded from deteSling an erroneous valuation^ hy 
 
 a proof to be adduced by himfelf, 
 
 Anfwered :
 
 26o Nature of an Insurance Contract. 
 
 Anfwered : The very purpofe of valued policies ^ 
 is to remedy the uncertainty of real amount, 
 which, on many occafions, is unavoidable, and 
 almofl always when a prize is infured before ar- 
 rival. It behoves the infurer indeed, in fpecify- 
 ing the value, to be free from any fraudulent 
 delign. But though an overvaluation Ihould 
 happen, if bo/m fide made, it will iland good. 
 The ftatute of Geo, II. was direded only againft 
 thofe infurances, in which the infured has no 
 true intereft ; but enadts nothing with refped 
 to cafes in which he holds a fubflantial property, 
 though of lefs value than that rated in the po- 
 licy. 
 
 The 'Lox^Hailes, Ordinary, having reported the 
 caufe, fome of the judges were of opinion, that 
 the fole eiFe6l of tl^e valuation, was to create a pre- 
 fumption, which, however, might be overcome 
 by proof; but the majority adopted the argu- 
 ment of the owners. 
 
 *< The Lords found the underwriters liable in 
 " terms of the policy of infurance underwritten 
 " by them." 
 
 In a reclaiming petition, the underwriters ar- 
 gued thus : Suppofe the full fpecified number 
 of dollars, 'viz. 20,700, to have been on board 
 and all faved, then furely to that extent, no 
 claim could lie againft the underwriters. Now, 
 in fad, the whole fpecie really on board, viz, 
 4200 dollars, was faved ; and what difference 
 could it make, that an additional number which 
 
 never
 
 Effect of a valued Policy. 261 
 
 never at all exifled, had been ftated by miflake ? 
 Did that create any lofs ? 
 
 On adviling this petition, with anfwers, in 
 which the former argument of botia fides fup- 
 porting the valuation, was again urged, the 
 Lords " adhered to their former judgment." 
 Fac. Coll. Bee. 2. .1783. — The infurers having 
 confulted very eminent Englifh counfel upon 
 this cafe, were advifed to acquiefce in the judg- 
 ment of the Court. 
 
 A valued policy has, in every inllance of 
 overvaluation, fome degree of connection with a 
 wager. In the following cafes, where there 
 is a real intereft, but belides the valuing claufe 
 there is a proviiion that the policy Jhall be fuffici- 
 ent proof of interefl^ it may become a matter of 
 conliderable hefitation, whether the legal or il- 
 legal circumilances of the contrad; Ihall be held 
 to predominate. The queflion in fuch a cafe 
 muil depend upon the a£lum et traclatiini be- 
 tween parties, at the time of the agreement, and 
 whether they meant to evade the llatute of 
 Geo. II. 
 
 Grant againfl Parkinson. 
 
 A policy was underwritten " at and from 
 Surinam to ^lebec, npon any kind of goods, 
 'b'c. and on the body, i:^c. of the lliip ; — the 
 goods valued at L. 1000, being profits expedled 
 to arife on the cargo in the event of arriving at 
 Quebec ; and in cafe of lofs, the infurers agree to 
 
 pay
 
 262 Nature of an Insurance Contract. 
 
 pay the fame without any other vouchers than this 
 policy."" 
 
 A verdid was found for the plaintiff; but, 
 upon the ground that this policy was within fta- 
 tute 19. Geo. II. leave was given to move that the 
 verdidl fhould be fet alide, and a nonfuit entered. 
 Lord Mansfield. — I have changed my opinion 
 from that I entertained at Guildhall^ and now 
 think that the policy is not void. 
 
 Before the ftatute, valued policies were com- 
 mon, and no proof was neceifary, either of the 
 value or the intereft, whether the words " with- 
 ** out farther proof than the policy" were add- 
 ed or not. After the a6l palTed, it was held ne- 
 ceifary, in a valued policy, to prove fome inte- 
 reji ; and it was competent to the other fide to 
 fhow that it was an evafion. But a fmall inte- 
 reft was eafily Ihown. 
 
 What is this cafe ? An infurance by a perfon 
 who fupplied the army with fpruce beer, on pro- 
 fits to arife from a cargo of molalfes, and the 
 profits infured appear to be certain. The policy 
 was not meant to conceal the nature of the inte- 
 reft, but to get rid of the neceflity of proving 
 the quantum : I cannot take it out of the com- 
 mon cafe of a valued policy. The words of the 
 ftatute are ftrong, and they ftruck me fo at 
 Guildhall. If it had been a new queftion, as to 
 the effedl of a valued policy, the words might 
 have occafioned difficulty ; but all judges have 
 conftrued them as I have ftated. 
 
 BULLER,
 
 Double and Overinsurance. 263 
 
 BuLLER, J. — The words of the policy are ca- 
 pable of either of the two conllru6lions ; the 
 queftion is, which is the fair one ? To come at 
 that, all the policy mull be taken together, and 
 it is clear, that a real interell was meant. There- 
 fore the parties were not wagering, and the poli- 
 cy not within the ad. The Rule difcharged. 
 
 Mich. 22. Geo. III. MS. 
 
 The cafe of Da Cojia v. Firth *, was limilar ; 
 in which the goods and merchandifes had been 
 *' valued at the fum injured^ without farther proof 
 " of intereji than the policy.''^ And the Court 
 faid, it was a policy of a peculiar fort, and of a 
 mixed nature, being partly a wager-policy, part- 
 ly on intereft. But they conlidered it as afford- 
 ing a ground of adlion. 
 
 8. An overvaluation, therefore, unlefs frau- 
 dulent, is not fufficient to deftroy the efFedl of a 
 valuing claufe^ or to cut down the eftimate which 
 parties have prcvioufly agreed to make of the 
 prime cofl. 
 
 But in every policy on interefl, whether open 
 or valued, it may happen that the fubjedt fliall 
 be overinfured. The merchant, fearing for his 
 {hip or cargo, and anxious to be fccured from ha- 
 zard, has tranfmittcd an order of infu ranee to 
 different places ; and it is unexpededly filled up, 
 at both, to the whole amount of the valued in- 
 , tereft. Or, in an open policy, the owner of iliip 
 
 or 
 
 * 4 Burr. 1966.
 
 264 Nature of an Insurance Contr.act. 
 
 or cargo may, from miftake, have eftimated his 
 property at an overvalue, and obtained infurance 
 accordingly. In all fuch cafes, throwing fu- 
 fpicion of fraud out of the queilion, the obli- 
 gation of the underwriter muft be reduced be- 
 low the terms of the contract, and made to cor- 
 refpond with the adual amount of intereft, and 
 the real or agreed values of fhip or cargo. 
 
 A queilion here arifes, whether, for this pur- 
 pofe, a deduction Ihall be made from all the dif- 
 ferent underwriters, in one or more policies, 
 proportionally to their fums fubfcribed, without 
 refped to the dates of their feveralfubfcriptions? 
 or whether the firft policy fhall be allowed to 
 ftand, and thofe of a pofterior date fet alide ? 
 
 The foreign ordinances have enforced the lat- 
 ter rule, and the prefent pradice of Britain has 
 adopted the former. 
 
 Thus it is provided by the ordinance of Spain, 
 
 " In all policies that fliall be made on fhips go- 
 
 " ing to the Indies, if more is infured than the 
 
 " cargo is worth, the lalt underwriters Ihall be 
 
 " ftruck out, and neither gain nor lofe more 
 
 " than the hslfper cent, for cancelling the rifk ; 
 
 " which fhall be run by all the remaining infu- 
 
 " rers proportionably ; and thofe who have laft 
 
 " ligned the policy fhall be deemed the pofterior 
 
 «* underwriters, although others have ligned it 
 
 " the fame day *.'* 
 
 To 
 
 * Ord. Spain, No. 85.
 
 Of Double AND Over-insurances. i6^ 
 
 To the fame effed are the regulations of Ant- 
 werp, Florence, Hamburgh, Middleburg, France, 
 Stockholm, and Genoa. 
 
 Some of the foreign Hates adopt a dirtindion 
 between the cafes where there have been two fe- 
 parate policies, and that where there is an over- 
 infurance in one policy. " In return of pre- 
 " miums," fays the regulation of Ainjldrdam, 
 " as alfo in averages and lolfes, the infurers who 
 '* have underwritten one and the fame policy, 
 *' although it be with difference of dates, lliall 
 " fliare equally : — but if more than one policy 
 " is employed and underwritten for one and the 
 " fame parcel of goods, or the fame inter&ft, 
 "■ then the Jirjl policy in date, without regard- 
 " ing that which is fubfequent, Ihall fubfift to 
 " the amount of the fum infured for the value 
 *' of the goods and effefts ; and the redudion 
 *' fhall fall upon the policy of latter date, as 
 *< well in the cafe of returns of premium, as of 
 '* averages and lofles *." 
 
 The law of Bilboa feems to enter into the 
 fame diftindion. There is, in fad, fomething 
 plaufible to be faid in favour of the pradice of 
 annulling thofe infurances that are pojlerior, and 
 fupporting thofe that are prior in date. It may 
 be argued, that if the bargain turns out advan- 
 tageous, thofe who are firft in date, have 2. jus 
 quafitum to the full benefit of their contrad, of 
 which they cannot be deprived by any fubfe- 
 
 L 1 qucnr 
 
 *Ord.Amft. N0.535.
 
 266 Nature of an Insurance Contract, 
 
 quent adl of the affured. And upon the fame 
 principle they muft be liable for the lofs, if the 
 bargain be unfortunate. Belides, a contrary- 
 rule may open a door to much collufive dealing 
 upon the part of the alTured ; enabling them to 
 hedge, and to withdraw themfelves from their 
 firft bargains, by fubfequent policies of a frau- 
 dulent nature. 
 
 The fame rule feems anciently to have been 
 eilablifhed in England. Gerard Malynes tells 
 us, that " when merchants caufe a greater fum 
 
 * to be alFured than the goods are worth, or 
 
 * amount unto, when they are laden into any 
 
 * Ihip which is expedled homeward, making ac- 
 ' count that their fadlors will fend them great- 
 
 * er returns than they do; in this cafe, the 
 
 * cujlom is, that thofe aflurers that have laji 
 ' fubfcribed to the policy of affurance, bear not 
 ' any adventure at all, and muft make reftitu- 
 
 * tion of the premium by them received, abating 
 
 * one half in the hundred for their fubfcription ; 
 ' and this is duly obferved ; and fa a law not 
 
 * obferved is inferior to a cuftom well obferved.** 
 Of this rule, the author now mentioned, ex- 
 
 prefles great approbation, by calling it, iii the 
 language of the period when he wrote, *' a rare 
 ** cuftom of infurances *." 
 
 By the modern pradice of Britain, however, 
 it is perfectly eftabliftied, that in cafes of double 
 or over-infurance, every underwriter, firft and 
 
 laft, 
 
 * Lex Merc. ill. Sec alfo Molloy,
 
 Of Double and Over-insurances. 267 
 
 laft, fliall be reduced proportionably, without 
 regard to the order of their fublbriptions, or the 
 dates of the policies ; they being always allowed 
 to retain one half per cent, on the deficiency 
 of intereil, as a confideration for the trouble of 
 keeping an account of the tranfadtion, and can- 
 celling the rifk *. 
 
 In Mr Magen's effiiy, we meet \yith fome 
 very judicious exceptions, which that intelligent 
 author propofcs to make, from the Britifli rule 
 now laid down. Thefe are of fuHicient import- 
 ance to deferve notice, and they cannot be bet- 
 ter flated than in the author's own words. 
 
 ** When a fpace has intervened between Ihip- 
 ping and fhipping, infuring and infuring, the in- 
 furer who flood aloney for a while, expofed to a 
 rilk, upon the goods firjt Jhipped^ fhould not af- 
 terwards be put on a level with thofe who un- 
 derwrote later, and for whofe rifk goods were 
 later fent aboard, or not fent at all. At London, 
 it is commonly infifled, that all who have in- 
 fured on goods expedled for one and the fame 
 perfon's account, without particularifing them, 
 whether they be comprehended in one or more 
 policies, and underwrote fooner or later, fhall 
 contribute equally to any lofs, or receive a re- 
 turn of premium, if overrinfured ; which would 
 be jufl and right, if all the feveral policies had 
 been figned before any goods went on board, 
 
 but not otherwife.'* 
 
 ** For 
 
 * To the fame efftcft, fee the Ordinance of Rott^rdm. 
 No. 267. — In Magens, v. 2,
 
 268 Nature of an Insurance Contract. 
 
 ** For a proof of this aflertion, let us fuppofe, 
 that a perfou who expedled goods from Cadiz 
 in the Ihip B, to the value of L. 5000, infured 
 L. 2000 provifionally at the London Infurance- 
 office, under the general term of goods, before 
 he knew of any goods being ihipped ; on his 
 receiving advice, fome time after, that the value 
 of L. 2000 was gone on board, he got L. 3000 
 more infured by the Royal Exchange Infurance- 
 company : Now we maintain, that L. 2000 
 value of the goods /^y? fliipped, ought to be ap- 
 plied to the London Infurance-company, and 
 not mixed with the goods loaded lajl ; for it is 
 poffible, that the fhip B might have perilhed in 
 the bay oi Cadiz, with only the firft fhipped goods 
 on board, and before the refolution was taken 
 in London to increafe the infurance ; confequent- 
 ly the Royal Exchange Company would not 
 have been comprehended in the faid lofs *." 
 
 " When ^n infurance is intended to be done 
 both abroad and at home, an explanation in 
 the policies on both fides, which (hall have the 
 preference, or Hand good firft, is a very material 
 circumftance, becaufe this cannot be decided by 
 the dates alone ; for inftance,'* — 
 
 ** A perfon refiding at Hamburgh, had the 
 value of 10,000 rixdoUars, or L. 2400 Sterling to 
 ihip for Lijhon, and had adually loaded, on the 
 I ft of July, to the value of L.4000 rixdollars ; 
 whereupon he gave an order that day to his cor- 
 
 refpondent 
 
 * Majens, 91.
 
 Of Double and Over-insurances. 269 
 
 refpondent in London^ to get infurance done far 
 L. 1000 Sterling, without any limitation, either 
 in premium or circumftances ; and on the 4th 
 of July, he got infured at Hamburgh the remain- 
 ing L. 140C, or 17,500 marks, though he had 
 not then fhipped more than the firft mentioned 
 4000 rixdollars, or 12000 marks; and the 5th 
 of July^ fome circumftances occurred, that indu- 
 ced him to alter his defign, and to refolve on 
 fliipping no more : — Now, the query is. Who 
 ought to make a return of premium according 
 to the fenfe of the Hamburgh ordinance : — To 
 which we reply, That notwithftanding the un- 
 derwriting of the LondoTi infurers muft be of a 
 later date than that of thofe in Hamburgh, who 
 underwrote the 5th of July, becaufe the order 
 fent to London on the ift of July, could not pof- 
 fibly arrive there before the 7th, and therefore 
 the underwriting in London could not be before 
 that or the next day ; yet we are very clear, that 
 the infurance in London^ though later in date, 
 ought to ftand good before that made at Ham- 
 burgh ; for, \^ between the ift of July, when the 
 order for infurance w^as fent to London, and the 
 4th of the fame month, when it was made at 
 Hamburgh, the fhip had been burnt, this laft 
 mentioned infurance would not have taken place ; 
 and confequently that done in London, on the 
 order given the ift of July, muft have borne the 
 entire lofs of Xht^c Jirjl Jhipped goods : Therefore 
 we think it is evident, that the return of pre- 
 mium
 
 270 Nature of an Insurance Contract. 
 
 mium ought to be made by the Hamburgh, in- 
 furers*." . . 
 
 In Britain, as has been obferved, it is eflablifh- 
 ed by modern practice, that a deduction ihall 
 be made from the fubfcription of every different 
 underwriter on the fubjecl infured ; and this, 
 whether the error as to the amount of intereft 
 has taken place in one, or in different policies ; 
 and whether in a double, or an over-infurance. 
 But although it is clear that the alfured ought 
 to be prevented from receiving more than a juft 
 fatisfadion for his lofs, yet it may be a queftion 
 whether he can only fue each underwriter for 
 his rateable proportion of the adual lofs j or 
 whether he may, in the firft inftance, fue upon 
 either policy, or any of the underwriters, to the 
 whole extent of their fubfcription, leaving it to 
 them to procure recourfe againft their fellows. 
 And here we may diftinguifh between an over- 
 infurance and double infurance. 
 
 An over -infurance takes place in every in- 
 ftance w^here the affured procures infurance to a 
 greater extent than his real intereft ; as when 
 he is not aware of the precife value of his Ihip 
 or cargo ; when, after a policy is underwritten, 
 the goods are Jhort-Jhipped, or a part of them, 
 before the commencement of rilk, relanded : or 
 where the merchant, afraid of not procuring, at 
 one place, infurance equivalent to his whole 
 
 property, 
 
 * Magens, 91.
 
 Of Double and Over-insurances. 271 
 
 property, fends an order to more places than one : 
 It may happen either in one or more policies. 
 
 A double infurance is where the affured not 
 thinking his fecurity fufficient from one policy, 
 opens another on the very fame fubjed. It oc- 
 curs principally in two cafes ; where an affured 
 is doubtful of the refponfihility of his firft under- 
 writers ; or where he is doubtful whether the 
 hazard undertaken ia the firft policy be fuffici- 
 ently extenfive. 
 
 The former is intended as a fingle fecurity for 
 a number of fubjeds, a part of which are dif- 
 covered not to exift. The latter is meant as a 
 double or additional fecurity for one fubjed. A 
 merchant procures infurance on 40 hhds tobac- 
 co •, it appears he had only 20 hhds ; the infu- 
 rance upon the other 20 is null, as upon a fub- 
 jed that does not exift ; this is an over-infu- 
 ranee. But fuppofe a merchant to have got in- 
 furance from A. B. on his cargo, which he 
 knows to confift of only 20 hhds, he is afraid of 
 A. B.'s infolvency ; he therefore goes to C. D. 
 and infures the very fame 20 hhds. Or fuppofe 
 he has infured them, "warranted from capture," 
 a war breaks out, and he wiflies to be more ful- 
 ly fecured ; he therefore procures a fecond infu- 
 rance on the fame merchandifcs, without any 
 fuch warranty ; this is a double infurance. 
 
 A double infurance is a valid contrad, to the 
 effed of procuring an additional fecurity to the al- 
 fured. It is meant, however, to conftitutc a fe- 
 curity
 
 272 Nature of an Insurance Contract. 
 
 curity only ; there is but one fubjecl loll, and 
 therefore the alTured can recover only one fatif- 
 fadlion. But it is a queftion, whether either fet 
 of underwriters fliall be fubjedled to, or able to 
 pay the lofs ; therefore each fet eventually runs 
 the whole rijk ; they are both therefore entitled 
 to keep the whole premium. 
 
 Hence it follows, that, in a double infurance, 
 the alTured is entitled to exert his option, upon 
 which of the policies he Ihall inlift for indemnifi- 
 cation, to the extent of the fums underwritten 
 in either. And when the aflured has recovered 
 an entire fatisfadion upon the one policy, the un- 
 derwriters, who have paid more than their fharfe 
 of the real lofs, have an equitable adtion 
 againft their fellow-infurers, to recover, accor- 
 ding to their feveral proportions, in the fame 
 manner as if they had all been fued in the fame 
 adtion. 
 
 Newby againjl Reid. 
 
 It was ruled by Lord Mansfield, C. J. and 
 agreed to be the courfe of practice, that, upon a 
 double infurance, though the alTured is not en- 
 titled to two fatisfadions, yet, upon the firll ac- 
 tion he may recover the whole fum infured, and 
 may leave the defendant therein to recover a 
 rateable fatisfadlion. Blackjl. Reports, p. 416. 
 After Eajier, 3. Geo, III. B. R. 
 
 In
 
 Of Double and Over-insurances. 273 
 
 In two cafes, Ro^ersfv, Davis *, and Davis v. 
 Gildart f, (reported by Mr Park,) — Rogers had 
 procured infurance iirfl: at Liverpool, and after- 
 wards at London, in two feparate policies from 
 Newfoundland to certain ports in the Weft In- 
 dies. The defendant, Davis, an underwriter in 
 the London policy, to the extent of L. 200, re- 
 fafed to pay above L. 1 24, upon the ground that 
 the Liverpool infurers ought to bear a fhare of 
 the lofs. The plaintiff iniifted that the defend- 
 ant muft pay the whole of his fubfcription, be- 
 caufe the voyage had been altered on the other po- 
 licy ', and therefore the Liverpool underwriters 
 could be fubjeded to no part. There was a 
 verdid for the plaintiff, with liberty for the de- 
 fendant to fue the Liverpool underwriters, if he 
 thought fit. 
 
 Davis accordingly did fo. Gildart, an infurer 
 on the firft policy, pleaded that the London in- 
 furance was a reajfurance, and illegal, and that 
 the plaintiff, having formerly negledled to ftate 
 this defence, could not recover againft him. 
 
 Lord Mansfield faid. If there be here two 
 fecurities for the lofs, there can be no doubt that 
 the affured may bring his adion againft either. 
 And, if the whole money be recovered from the 
 one, he may feek recourfe for a proportion a- 
 gainft the other. This is not a reinfurance, but 
 a double infurance. The plaintiff had a vcrdid. 
 
 Mm In 
 
 * Mich, Vac. 17. Geo. III. 
 
 t EaJJ. Vac. 17. Geo. Ill, At Guildhali
 
 274 Nature of an Insurance Contract. 
 
 In over-iiifurance, however, the cafe is very 
 different. There are not two fecurities for one 
 fubjed ; but an infurance on different fubjedls, 
 a part of vi^hich are difcovered to be nonentities. 
 Sq far as refpedts the overplus, therefore, the con- 
 trad: is null ; the infurer never runs any rifk ; 
 and cannot retain the furplus premium. Above 
 the extent of intereft, he is under no obligation 
 whatever. In cafes of over-infiirance^ therefore, 
 whether in one or in different policies, a deduc- 
 tion muff, in the firft place, be made, from dif- 
 ferent fubfcriptions ; and then each underwriter 
 may be fued for his proportionable Ihare of the 
 lofs. 
 
 Although no man can recover more than 
 once for the thing loft, nor more than its real or 
 ejiimated value, yet the fame, or different per- 
 fons may fecure a variety of different interefts 
 in the fame thing. The following cafe relates 
 to this point, and ferves to illuftrate the whole 
 fubjedt of double infu ranees. 
 
 GoDiN V. the London Assurance Company. 
 
 The material fa6ls of this cafe, as ftated by 
 Lor4 Mansfield, in delivering the opinion of 
 the Court, were as follows. 
 
 Mr Mejbobm of St Peter/bur^h, had dealings 
 with Mr Arnyand and Co, of London, and was in- 
 debted, on the balance of accounts, to that Compa- 
 ny. Arnyand ajid Co. fent a fliip to Mr Meybobm at 
 St Peterfburgh, to fetch certain goods. — Meybobm 
 
 fhippe4
 
 Of Double and Over-insurances. 275 
 
 fhipped the goods, and promifed to fend the bill 
 of lading bj the next poll, but never did. After- 
 wards, in Auguft 1756, Amy and and Co. got in- 
 furance from private underwriters, forL. iioo, 
 on the fliip, tackle and goods, " at and from 
 " London to St Peterfburgh, and back again to 
 *' London ;" and of this fum L. 500 was declar- 
 ed to be on eleven Jixteenth parts of the [hip ^ and 
 the remaining L. 6co to be on goods. Between 
 the 26th Auguft and 28th September 1756, Mr 
 Amyaiid had infured L. 800 more with other pri- 
 vate infurers, upon goods only^ *' at and from St 
 *' Peterfburgh to London." 
 
 About the 27th of October, he received a let- 
 ter from Meybohm, dated at St Peterjhurgh, 2d 
 September 1756, mentioning what goods he 
 meant to fend them, direding them to get infu- 
 rance thereon, and to place the goods and infu- 
 rance to a particular account ; fpecifying alfo 
 fome iron, which was for Mr Amyand's own ac- 
 count. On the 28th, 29th and 30th October, Mr 
 Amy and accordingly got infured L. 900 more, 
 with other private infurers, on goods only, ** at 
 <• and from the Sound to London.^* 
 
 Meantime, Meybohm having lliipped the goods, 
 indorfed the bills of lading to one Mr John 
 Tamez in Mo/cow, who, on the 7th of Odober 
 1756, wrote to his correfpondent, Mr Uhthoff, 
 in London, to infure tliefe goods : In this let- 
 ter, he defires Mr Ubthof to infure the whole, 
 *' that he, Tamez, might be fure in all events ; 
 «' for he fufpedcdjthat thefe goods were intcnd- 
 
 *'cd
 
 276 Nature of an Insurance Contract, 
 
 " ed to be configned by Meybobm to fomebody 
 " elfe, and perhaps might be infured by fome 
 " other perfon ;" and he fays, they were tranf- 
 ferred to him in confideration of his being in 
 advance to Meybohm more than their amount. 
 
 This letter from Mr Ta7nez, with thefe direc- 
 tions to infure, was received by Mr Uhthoff on 
 15th November 1756; he accordingly applied, 
 through the medium of Godin, the plaintiff, to 
 the defendants, the London AJfurance Company, 
 who, on the i6th November 1756, being appri- 
 fed that there might be another infurance, never- 
 thelefs made that in queftion for L. 2316 on the 
 goods, " at and from the Sound to London,^'' The 
 goods were loft in the voyage. 
 
 The queftion is, Whether the plaintift* is en- 
 titled to recover the whole lofs from the prefent 
 defendants, or only the half from them, and the 
 remainder from the underwriters of Mr Amy and* -^ 
 policy ? — A verdid: has been found for the whole, 
 fubject to the opinion of the Court. 
 
 Firji, To confider it as between the infurer 
 and infured, the infurer ftiould pay the whole, 
 having received a premium for the whole rifk. 
 
 But as infurance is a contrad: of indemnity 
 merely, a man cannot recover doubly for the 
 fame lofs ; and if he infures the fame fubjedt 
 twice, either in his own name, or by the inter- 
 vention of any other perfon, and recovers the 
 whole from one infurer, this infurer ought to 
 
 ft and
 
 Of Double and Over-insurances. 277 
 
 ftand in the place of the infured, to receive con- 
 tribution from the other who was equally liable. 
 
 It has been faid, that the indorfement of the 
 bills of lading transferred Meybobni's intereft in 
 all policies by which the cargo ajQSgned was in- 
 fured ; and therefore Tamez, as the aflignee of 
 Meybohm, has a right to Mr Artiyand's policy, 
 and may recover the money infured ; and even, 
 he may bring trover or detinue for the policy it- 
 felf ; and hence it is urged, that he may have a 
 double fatisfadion. 
 
 But different people may infure different in- 
 terefls on the fame bottom. — And here Mr ^rny- 
 and had an intereft of his own, diftind from that 
 of Meyhohm. — He had the Ihip ; and he had a 
 lien upon the goods, as a fador to whom a ba- 
 lance is due ; and he had infured L. 1900 on 
 both, before begot any inJlru6lions from Meybobm, 
 — It does not appear, that even his laft infurancc 
 in Odober was made as agent for Meyhobjn. 
 
 But fuppoling Amyand had made his infu- 
 rance as fador for Meybobm ; yet, even then, 
 Tamez can never come againft the underwriters 
 upon Amyand's policy, for his ov/n benefit ; for 
 Mr Amyand, as fador for Meybobm, is a credi- 
 tor of Meybobm* Sy upon a balance of accounts be- 
 tween them ; he is in pofTeffion of the policy, 
 and has a lien upon all goods of his principal, 
 fo long as they remain in his polTeflion. Krufer 
 
 et al. V, Wilcox et aL 
 
 Befidcs,
 
 278 Nature of an Insurance Contract. 
 
 Befides, the defendants underwrote, knowing 
 that there might be another prior infurance, and 
 took a premium for the whole rifk. — It would be 
 hard to make the plaintiff feek his redrefs from 
 Amyand''s underwriters, againll whom it is doubt- 
 ful, if he would recover at all, or, at leaft, with- 
 out expence. — This is not, therefore, a double 
 infurance, although there are two infurances ; 
 for thefe are not upon the fame fubjed. 
 
 Mr Tamez is entitled to receive the whole 
 from the defendants upon their policy ; and 
 they will have a right, in cafe he can claim any 
 thing under Mr Amyand's policy, to ftand in 
 his place for a contribution to be paid by the 
 underwriters to them ; but ftill they are obliged, 
 in the firft place, to pay the whole to Tamez. 
 Judgment for the plaintiff. 1 . Burr, 490. Feb, 9. 
 
 1758. 
 
 So much with regard to the difference be- 
 tween policies, in refpedl of the alTured's in- 
 terefl in the fubjedt ; — the dillindion between 
 wagers and proper infurances ; — the reftridlion 
 of gaming policies, with the means adopted to 
 render thofe reftridions effedtual ; — the circum- 
 ftances that conftitute an infurable intereft ;— ■ 
 the mode of afcertaining the amount of this in- 
 tereft, by fubfequent evidence, or by previous 
 eflimate : — and the effed of double and over- 
 
 infurance. 
 
 Sect.
 
 Effect of the Extent of Loss. 279 
 
 Sect. II. In what Manner the Obligation of the 
 Underwriter is afft6led by the Nature and Extent 
 of the Lofs, 
 
 The amount to which the underwriter is li- 
 able, muft obvioufly depend not only upon the 
 extent of the ajfured's interefl^ but alfo on the 
 amount of damage and lofs fuftained in the ad- 
 venture. 
 
 And here two different kinds and degrees of 
 lofs may be diftinguiflied : A total and a par- 
 tial one. Concerning each of thefe, there arife 
 feveral quellions of conliderable difficulty and 
 importance. 
 
 Art. I. Of total Lofs and its EffeBs. 
 
 Every infurance policy contains a claufe, by 
 which the allured are entitled '* to labour for 
 ** the prefervation of ftiip and cargo." But 
 without any fuch exprefs ftipulation, there feems 
 to lie an implied obligation upon the alTured, to 
 exert themfelves, in every reafonable way, to 
 the utmofl of their power, in profecuting and 
 promoting the adventure infured. Infurance 
 may be confidered, in one view, as a fort of co- 
 partnerfhip between the contrading parties, in 
 which the underwriter entrufts to the allured 
 the fole management of their common concern. 
 The aflured has the intereft of others as well as 
 himfelf, to manage ; and it is an intereft which 
 the underwriter purchafes for a valuable con- 
 fideration. The aflured is therefore bound to 
 
 ftria
 
 28o Nature of an Insurance Contract. 
 
 ftrid diligence : '* Inadivity in fuch a cafe,*' 
 fays Valines ^, " would be fraudulent." 
 
 But this obligation upon the affured, extends 
 only a particular length. After damage has been 
 fuftained to a certain amount, there may be rea- 
 fon to conclude, that the adventure ought to be 
 laid afide ; that any farther profecution of it 
 would be produdive of difadvantage to all con- 
 cerned ; that the expence attending it would go 
 beyond the profit. In fuch a cafe, the aflured 
 mufl have it in his option to lay alide the 
 voyage. 
 
 While he exerts himfelf in counteradling the 
 effects of unfortunate accident, and, incurs ex- 
 traordinary expence, by endeavouring, with any 
 reafonable profpect of fuccefs, to xarry on the 
 adventure, he has, undoubtedly, from natural 
 equity, a claim for fuch expence againll the in- 
 furer, cujus in rem verfum eft. There is not on- 
 ly room for a prefumption of tacit confent, on 
 their fide, to fuch meafures, but, in many cafes, 
 they may reap adual benefit by the aflTured's 
 difburferaents. 
 
 Several ftates have anxioully wilhedtollrength- 
 en and extend this claim. In the old Ham- 
 burgh policy, there was a claufe empowering 
 and defiring the aflured to ad: for the infurers, 
 "Be it with profit or lofs." The Amllerdam 
 and Stockholm policies give Hill more power : 
 «' That it fhall be lawful for the aflured to ad 
 *' according to their judgment, to fell the goods 
 
 " faved 
 
 * 2. Comm. 99.
 
 What is a total hoss.^- Abandonment. 281 
 
 '' faved, and di (tribute the produce, without the 
 ** infurers confent. The in Hirer fliall pay all 
 '' charges, whether any thing be faved or not, 
 *' and fhall not be allowed to objed to the affur- 
 '' ed's accounts, given upon oath." There is 
 perhaps danger in veiling the aflured with a 
 power fo extenlive. 
 
 But after, from loffes and misfortunes, it is 
 reafonable to coniider the voyage as defeated • 
 there appears no equity or common feilSe in fub- 
 jecling the infurers to any farther expence, to 
 which, if upon the fpot, they would not have 
 confented, and which can no longer be incurred 
 for their advantage. If the owner perfifts in the 
 adventure beyond a certain point, he feems to 
 be cut off from any claim for the additional ex- 
 pences fuch obftinacy may occafion. And it has 
 been doubted how far a court of law ought to 
 fuftain his adtion againft the infurers, to a greater 
 extent than the value of fhip and cargo. 
 
 It is held by ValineSj that, although what the 
 aflured doth for the recovery of fliip and goods, 
 is fuppofed to be done in name of the infurers, 
 and for their acco\mt ; yet his reimburfement of 
 charges ought to be limited to the value of the 
 effeds recovered, unlefs the infurers fliould give 
 him fpecial authority. 1. Val. Com, 99. I'his 
 appears a hard limitation : Perhaps it ought not 
 fo much to be confldered, what is the adlual va- 
 lue recovered, as what there was a reafonable 
 profped of recovering. 
 
 Nn On
 
 282 Nature of an Insurance Contract. 
 
 On the other hand, the affured, in fuch cir- 
 cumftances, when the continuance of the voyage 
 would no longer be for his own intereft ; when 
 it might, in all probability, be detrimental to 
 the infurers themfelves, may refufe to make any 
 farther ufelefs exertions in the profecution of the 
 adventure, and he may come upon the under- 
 writers for the whole infured values, and for the 
 expences already ufefully incurred. 
 
 At the fame time, as the infurers may per- 
 haps entertain a better opinion of the adventure, 
 and as there may ilill remain fome part of the 
 value of fliip and cargo, he cannot retain thefe 
 in his own hands, while he obtains complete in- 
 demnification , by his action upon the policy. 
 He mud make a cejjion or abandonment of his in- 
 tereft, to the underwriters. 
 
 As this power to abandon^ in order to have re- 
 courfe againft the underwriters for a total lofs, 
 is calculated to favour the affured, who are, by 
 that means, fecured from the rilks of a doubtful 
 or unprofperous adventure ; if the affured fhall 
 chufe to relinquifh this advantage, they have it 
 in their pov/er to perfevere in the voyage. It is 
 in the option of the affured whether to abandon 
 or not *. 
 
 It would be in the higheft degree dangerous, 
 however, and abfurd, if the affured could aban- 
 don, without affigning the failure of the voyage 
 as a reafon for fuch conduct. It would be re- 
 lieving him entirely from the obligation to dili- 
 gence 
 * Foreign Oxd.-~~paJp.m.
 
 What is a total Loss. — Ahandonment . 283 
 
 gence and activity, and would put it in his 
 power, whenever he chofe, to convert into a to- 
 tal lofs, what might otherwife be a partial one, 
 perhaps of a trifling nature : Neither can he 
 abandon in part ; for a partial abandonment im- 
 plies a partial, not a total lofs. 
 
 The underwriter, it has been obferved, can- 
 not oblige the afliired to abandon : But, furely, 
 by offering to pay a total lofs, he can prevent 
 any further expences from being incurred, above 
 the amount infured. I know not of any au- 
 thorities, by which this point is clearly eftablilh- 
 ed ; but the rule feems highly expedient, and 
 highly equitable ; as it puts the alTured and un- 
 derwriter on an equal footing. 
 
 Whatever entitles the affured to abandon, con- 
 llitutes a total lofs, with refpedt to the obligation 
 of the underwriters. And here, as damage is a 
 matter which admits of various degrees, it feems 
 difficult to lay down a general rule, what pre- 
 cife degree of lofs fhall, in all cafes, entitle the 
 alTured to relinquifli the adventure. Upon this 
 fubject, injur ances upon interejl, wager policies^ 
 and infurances on privateers, or on a cruifing ex- 
 pedition, may deferve a feparate examination. 
 
 I. AnA,JirJl, In common policies upon intcreft, 
 whether valued or not, it feems to be eftablillicd, 
 that a total lofs, or what (liall entitle the affured 
 to abandon, does not require the total wreck, 
 capture, or deftrudion, in any other way, of tlic 
 hulk of the fhip, or of the cargo, in a literal fcnfe. 
 Were this the cafe, it would be impoffiblc that 
 
 a
 
 n 
 
 ii 
 
 284 Nature of an Insurance Contract. 
 
 a lofs could ever be total ; for fcarce any wreck 
 is fo complete, but fome piece of the fliip, or 
 fome remnant of the cargo may be faved. But 
 as the fhip is infured with a view to the execution 
 of a particular adventure, every lofs may be con- 
 lidered as total, which completely difappoints the 
 objedt of parties ; — every lofs which is fo great as 
 to defeat the voyage. In the words of Lord Mans- 
 field, " If the voyage be loft, and not worth 
 purfuing, — If farther expences be neceflary, 
 and the infurer will not, at all events, under- 
 take to pay that expence, the affured may a- 
 " bandon=^/' 
 
 This principle may, in policies on intereft, be 
 illuftrated in a great variety of cafes, which, in 
 iCngland and Scotland, have been decided with 
 uniformity, in favour of the aflured's right to 
 abandon, wherever fuch a damage occurs as is 
 fufficient to defeat the voyage. 
 
 1. Suppofe, for example, a Ihip has fufFered 
 fea-damage, and has incurred a falvage in order 
 to preferve her from entire fhipwreck ; if the 
 neceflary falvage exceeds the value of the thing 
 faved, the lofs is total, and the aflured may 
 abandon and recover from the underwriters. 
 
 2. In the fame manner, if the freight ihall ex- 
 ceed the value of the goods faved, the lofs is to- 
 tal ' As may be illuftrated by the following 
 cafe : 
 
 BOYFIELD 
 
 * In Gofs V. Withers. See below.
 
 Total Loss in Policies on Interest. 285 
 
 BoYFiELD V. Brown. 
 
 Upon the execution of a writ of enquiry be- 
 fore Lord Hardwicke Chief Juftke^ it appeared 
 that the defendant was an infurer to the extent 
 of L. 200 upon corn, the value of which was 
 L. 2,17 ; that the corn was fo damaged in the 
 voyage, that it fold only for L. 67, and the 
 freight came to L. 80. And upon this the 
 queftion was, whether as the freight which the 
 plaintiff was obliged to pay exceeded the falvage, 
 this was not to be conlidered as a total lofs. 
 
 And for the plaintiff it was infilled, that he 
 ought not to be in a worfe condition, than if 
 his corn had gone to the bottom of the fea ; for 
 then he would have had no freight to pay ; and 
 now that the voyage has been performed, where- 
 by the freight is become due, he has a right to 
 apply the goods faved to difcharge that. It was 
 proved to be the ufuge, where the goods faved 
 exceed the freight, to dedud the freight out of 
 goods faved, and make up the lols upon the dif- 
 ference. 
 
 For the defendant it was infifted, that as his 
 infurance was upon the corn, and the whole did 
 not perilh, he ought, in making up the lofs, to 
 dedud the goods faved : But no inftance could 
 be Ihewn on either fide, of an adjuflment where 
 the freight exceeded the goods faved. 
 
 The Chief Jujlice was of opinion, that, within 
 the reafon of deducting the freight, when the 
 
 goods
 
 286 Nature of an Insurance Contract. 
 
 goods faved exceed it, the plaintiff was, in this 
 cafe, wherein they fell fhort, entitled to have it 
 conlidered as a total lofs. And the jury found 
 for the plaintiff accordingly. 2. Strange 1065. 
 Mich. 10. Geo. II. *. 
 
 3. In the fame manner, where there has been 
 a capture and ranfom, and the value of the fub- 
 je6l recovered has fallen below the ranfom, the 
 alfured may abandon. 
 
 Lane and Caswell v. Collier. . 
 
 The fliip Reprifal failed from Cape Fear^ with 
 a cargo of pitch, tar, 'i^c. for Brijloly and had 
 got within an hundred and fifty leagues to the 
 weftward of Cape Clear in Ireland, when fhe was 
 attacked and taken by three French fliips bound 
 for Newfoundland. They carried her thither, 
 to a French port, called Carpoon, after having 
 taken out all her men, and difperfed them aboard 
 their own fliips. 
 
 On their arrival at Carpoon^ the captors took 
 out all her pitch, (being two hundred and three 
 barrels) fome tar, what rice was aboard, l^c. \ 
 and after detaining her about three or four 
 weeks, they offered Captain Gowen his fhip and 
 remaining cargo, for 9500 livres, (about L. 425 
 
 Sterling) 
 
 * We fliall afterwards have occafion to obferve, that a differ- 
 ent rule now takes place with regard to corn and fimilar com- 
 modities, in confequence of the N. B. introduced into policies 
 fince the date of this decifion.
 
 Total Loss in Policies on Interest. 287 
 
 Sterling) which he accepted, and he left his fon 
 .as an hoftage for the payment of the ranfom. 
 
 The Ihip departed from CarpooTi for Brijlol^ 
 and on her voyage met with very bad weather, 
 which broke her rudder, and was forced to put 
 into Appledore in Devonfhire, (the firft port they 
 could make in fafety) where the captain applied 
 to Mr Perkins of Briltol, to whom he was con- 
 ligned by Jo7ies the owner ; but Perkins refufed 
 to pay the ranfom-money, or to have any thing 
 to do with the fhip or cargo. Upon which the 
 captain came upon the infurers ; and thofe who 
 had infured on the goods empowered and defired 
 him to fell the cargo for what he could, in order 
 that if it produced more than the ranfom, they 
 might have the benefit ; but the infurers on the 
 Ihip would not intermeddle, or give any direc- 
 tions about it. 
 
 The captain returned to the fhip, and fold that 
 and the cargo jointly, for above L. 100 lefs than 
 the redemption-money, after deducting charges, 
 and he has been obliged to pay or give fecurity 
 for the remainder, to procure his fon's liberty. 
 
 The plaintiff claimed a total lofs ; but the de- 
 fendant pretended, that as part both of the fliip 
 and goods were faved, he is only fubjed to an 
 average. The jury found a verdid for the plain- 
 tiffs. See Lex Mercat. Red. 282. At Guildhall, 
 
 Hil. 1745. 
 
 4. In the fame manner, where, in a policy 
 upon interefl, the voyage is defeated by a feizurc 
 
 or
 
 288 Nature of an Insurance Contract. 
 
 or detention, the alTured may claim as for a total 
 lofs. 
 
 Storey v. Brown *. 
 
 Infurance on the Sarah Galley^ " at and from 
 " London to Gibraltar, and from thence to Lon- 
 " don, valued at the fum infured." The fhip was 
 chartered from London to Gibraltar^ and thence 
 to the Nore, to receive orders from the freighter ; 
 and the plaintiff was the fole owner of the fhip. 
 The fhip arrived in Gibraltar in jfujie, and was 
 loaded with wines by the freighters correfpond- 
 ent for her return-voyage. At Gibraltar, the 
 fhip was feized by the Salijbury and Solebay men 
 of war. The mafter was turned out of poffeflion, 
 and feveral of the failors imprefTed. The cap- 
 tors proceed againft the fhip and cargo, as for- 
 feited. — The fhip was ordered to be rellored, 
 and was fent by the freighters correfpondent, 
 with a cargo for Dunkirk, where flie was after- 
 wards overfet and loft. An adtion was brought 
 by the infured ; and though it was relied on for 
 the defendant, that the fhip was not totally loft, 
 but had been delivered after the capture to the 
 agent of the freighter, and by him fent another 
 voyage •, yet as the taking at Gibraltar was a 
 breach of the policy in the voyage, whereby the 
 return-voyage was prevented, a fpecial jury gave 
 
 the 
 
 * We cannot help obferving, that the circumflances of 
 this cafe feem to be very imperfe<ftly handed down to us. 
 It fcarcely appears a well-founded decifion.
 
 Total Loss in Policies on Interest. 289 
 
 the plaintiff a verdi^l for a total lofs ; and he had 
 judgment accordingly. Trin. 18. and 19. Geo. II. 
 1746. B.R. Stated in the CB.(e of Fitzgerald againjl 
 Pole, before the Houfe of Peers. 
 
 5. In cafes of capture and recapture^ the cafes in 
 which we fee the operation of the maxim, " that 
 ** a lofs is total when the voyage is defeated," 
 are ftill more numerous. 
 
 In the Jirji place, in policies upon intereft, the 
 capture undoubtedly occalions a total lofs, fo 
 long as it continues ; but where a recapture takes 
 place, it is to be conlidered, whether, in the cir- 
 cumjlances of the cafe, the capture has had the ef- 
 fed: to defeat the voyage : And the alfured has 
 it in his power or not accordingly to abandon. 
 
 Goss V, Withers. 
 
 There were two policies of infurance ; one 
 *' on the Jhip David and Rebecca ;" the other ** on 
 ^' goods aboard the faid fhip," — " from New- 
 ^'foundland to the Straits, or Lijlon.'' On the 
 23d December 1756, flie was taken by the 
 French; the mafter, mates and all the failors, 
 excepting an apprentice and landman, were taken 
 out ; and the fhip was carried to France. She 
 remained in the hands of the enemy eight days ; 
 and was then retaken by a Britifh privateer, and 
 brought into Milfordhaven, It was proved, that 
 immediate notice was given by the affured to 
 the underwriters, accompanied with an offer to 
 abandon the fhip to their care. It was alfo pro- 
 
 O o ved.
 
 290 Nature of an Insurance Contract. 
 
 ved, that before the capture by the enemy, a vio- 
 lent ftorm arofe at fea, which firfl feparated the 
 lliip from her convoy, and afterwards difabled 
 her fo far, as to render her incapable of proceed- 
 ing on her deflined voyage, without going into 
 port to refit. 
 
 It was alfo proved, that part of the cargo was 
 thrown overboard in the ftorm, and the reft of it 
 was fpoiled, while the ftiip lay at Mildfordhaven, 
 after the offer to abandon, and before fhe could 
 be refitted. And the affured proved their inte- 
 reft in the ftiip and cargo to the value infured. 
 
 It was argued for the aflured, \mo. That this 
 was a total lofs : For the fliip was fo long in pof- 
 feflion of the enemy, that the owners muft be 
 fuppofed to have loft the hope of recovering it. 
 Grotiuj, /. iii. c,6, § 814. Be Jure Belh et Pac, 
 And the owner was therefore divefted of the pro- 
 perty. Deaji V, Dicker, 2. Strange, 1250. 
 
 ido. That here the alTured have a right to 
 abandon to the infurers. That the cargo was 
 periftiable, and part of it thrown overboard. The 
 Ihip was in port in England, the hands all in 
 France in prifon ; and that the coft of falvage 
 would exceed the value of the thing faved. 
 
 For the infurers, it was maintained, that this 
 was only an average-lofs. That the owners were 
 not divejled of the property ; for the veflel had 
 not been carried hifra prcefidia bojlium. And that 
 the circumftances of the cafe were not fuch as 
 Jhould entitle the aflured to abandon ; particular- 
 ly,
 
 Total Loss in Policies on Interest. 291 
 
 ly, as, by the prize-ad, 17. Geo. II. c. 6. the own- 
 er was entitled to recover his fhip from the re- 
 captor on paying falvage. 
 
 Lord Mansfield, in delivering the unani- 
 mous refolution of the Court, laid, That tht frjl 
 point, whether the owner was divefted of the 
 property, was immaterial in this queftion be- 
 tween the infurer and affured. That queftion 
 can occur in two cafes only ; namely, Jirjl, be- 
 tween the owner and a neutral perfon, who has 
 bought the prize from the enemy ; 2dlj, be- 
 tween the owner and a recaptor. In an action 
 againft the Hundred for a robbery, it is quite 
 immaterial, whether the robbery changed the 
 property of the goods or not. And the effedt of a 
 capture, with regard to the property of the fhip, 
 was a parallel cafe. 
 
 That, as to the fecond point, whether the infu- 
 red had a right to abandon upon the i8th Janu- 
 ary 1757 ; — there was not a fingle authority 
 which did not fay, that the infured might aban- 
 don in cafe of the fliip being taken. He may 
 even abandon in the cafe merely of an arreji or 
 embargo. At one period, therefore, and during 
 eight days, the alTured was entitled to demand 
 as for a total lofs. And the fubfequent recap- 
 ture of the (hip, difabled to purfue her "joyagt, 
 cannot take away i. right which the infured has 
 acquired at the time of the capture. That there 
 might be circumftances, in which the capture 
 might be but a trifling hindrance to the voyage.
 
 29^ Nature of an Insurance Contract, 
 
 and where it would be fraudulent in the owner 
 to turn an average into a total lofs, by abandon- 
 ing. But here the voyage was completely defeated 
 by the capture. 
 
 It was found, that the lofs was total, in con- 
 fequence of the voyage being defeated by the 
 capture ; and that the owner might abandon, to 
 the infurers, the claim which he had againft the 
 recaptors, to have the fhip and cargo reftored to 
 him. 2. Burr. 683. Nov. 1758. 
 
 Hamilton v, Mendes. 
 
 It appeared in this cafe, that the fhip Selby, in 
 which the plaintiff had intereft, was infured 
 from Virginia or Maryland to London, by the 
 defendant, to the extent of L. 100. — The Ihip 
 valued at L. 1 200 Sterling. That, after taking 
 on board 192 hogfheads of tobacco, to be deli- 
 vered at London, ihe failed from Virginia on the 
 28th March, and, on 6th May, was captured by 
 a French privateer, who took out fix men of the 
 nine on board, befides the captain, leaving only 
 the mate and one man, and putting fome French 
 men on board. But the Hiip fuftained no da- 
 mage by the capture. 
 
 That on the way to a French port, the Selby 
 was retaken by an Englifh man of war on the 
 23d May, and arrived at Plymouth the 6th June 
 following ; when the plaintiff, in due courfe, in- 
 timated an intention of abandoning ; to which 
 the defender refufed to accede, but offered to 
 
 pay
 
 Total Loss in Policies on Interest. 293 
 
 pay the falvage and whole expence incurred. 
 The whole cargo was afterwards delivered lafe 
 to the freighters. 
 
 The queftion, therefore, (fubmitted to the 
 opinion of the Court) was, " Whether the plain- 
 " tiff, on the 26th June, when he made the offer, 
 ** had a right to abandon, and can recover as for 
 *' a total lofs." 
 
 Lord Mansfield, in Hating the judgment of 
 the Court, faid, that the debate had turned upon 
 the four following points. 
 
 Firjl, Whether, by this capture, the property 
 was dive/led, and the lofs total for ever ? But this 
 queftion was immaterial between infurcr andaffu- 
 red. 
 
 2dlyy Whether, if the property was not changed, 
 ftill a capture was a total lofs ? And here his 
 Lordfhip agreed with the plaintiff, that a capture, 
 while it lajledy inferred a total lofs. 
 
 ^dly. Whether the recovery of the Ihip, in 
 the circumftances of the cafe, was not fuch as to 
 change a total into an average lofs ? And here 
 every cafe ftood upon its own circumftances. 
 That where the voyage was loft, or where the in- 
 furer would not undertake for all further expence 
 incurred in the purfuit of it, the aifured might 
 abandon. But here the capture had occafion- 
 ed only a flight temporary interruption to the 
 voyage, and when the offer to abandon was made, 
 the defendant had offered to bear the additional 
 expence it occalioned. 
 
 ^thly.
 
 394 Nature of an Insurance Contract. 
 
 /^thly^ Whether the lofs having once been total, 
 and a right vejled in the infured to recover the 
 whole upon abandoning ; — that right could be 
 divejledy or taken from him by any fubfequent 
 event ? 
 
 Every claim for indemnity (like the prefent) 
 mull, by the common law, be proportioned to 
 the lofs at the time when the claim is brought. 
 Whatever takes away the lofs, muft deftroy the 
 claim in whole or in part.— Parallel cafe of a 
 tenant who has done wajley but repaired it be- 
 fore ad;ion. — Of a furety fued to judgment, who 
 has no need of an adion for indemnity, if, be- 
 fore an adlion brought, his principal fatisfies the 
 debt. There can be no claim for indemnity 
 without 2ifubjijiing lofs at the date of the action. 
 
 Belides, there was no right to abandon here 
 vejled in the plaintiff. For the aiTured is never 
 obliged to abandon. He has an eledion, and 
 no right can veil as for a total lofs, till he has 
 made that eledlion. He cannot eledl before ad- 
 vice be received of the lofs ; and if that advice 
 fhews the peril to be over, and the lofs removed, 
 he cannot eledl at all. Roccus, not. 204. not. 50. 
 Spencer v. Franco ; — Pole v. Fitzgerald. — The 
 cafe of Gofs v. Withers had been mifunderllood. 
 It was there delivered, " That in cafe of the 
 " ihip being taken, the infured might demand 
 " as for a total lofs." — But it was in the circum- 
 ftances of that cafe," where a total lofs occalioned 
 
 " by
 
 Total Loss in Policies on Interest. 295 
 
 " by the capture, continued till the time of a- 
 '* bandoning or bringing the action." 
 
 The confequences of the plaintiff's dodlrine 
 were dangerous. The only reafons for abandon- 
 ing in fuch circumftance mufl be, to load the 
 underwriter with the fall of the market, or to 
 take advantage of an over-valuation. — Both of 
 which were unfair. 
 
 Therefore " the plaintiff can only recover ac- 
 " cording to the nature of his cafe at the time 
 " of the action brought, or (at mofl) of the offer 
 " to abandon." — The plaintiff here can only re- 
 cover for an average lofs. 2. Burrow, 1198. 
 ^tb June 1 761. 
 
 MiLLES againjl Fletcher. 
 
 The fhip Hope, and her freight, were infured 
 from Montferrat to London. The fhip, when 
 proceeding on her voyage, was captured on 23d 
 May, by two American privateers, who took the 
 captain, all the crew, and part of the cargo out 
 of her. The rigging was alfo taken away. She 
 was afterwards retaken and carried into New 
 York, where the captain arrived on 23d June, 
 and taking poffeflion of her, found that part of 
 what had been left of the cargo (which was fu- 
 gar) was wafhed overboard, that 57 hogflieads 
 of what remained was damaged, and that the 
 fhip was leaky, and in fuch a Hate that fhe could 
 not be repaired without unloading her entirely. 
 The owners had no ftorehoufes at New York, 
 
 where
 
 igG Nature of an Insurance Contract. 
 
 where the fugars could have been put while the 
 (hip was repairing, nor any agent there to ad- 
 vife and direct the captain. No failors were to 
 be had. The only method he had of paying the 
 falvage, which amounted to the value of 40 
 hogfheads of fugar, was by fale of part of the 
 cargo, or the (hip. The captain did not know 
 of the infurance. If he had repaired the fliip, 
 his expences would have exceeded the freight by 
 more than L. jog. There was an embargo on 
 all veflels at New York, till the 27th of Decem- 
 ber, and by the deftination of his fliip, (he was 
 to have arrived at London in July. Under 
 thefe circumftances he confulted with his friends 
 at New York, and refolved, upon their opinion, 
 and his own, to fell the fhip and cargo, as the 
 mofl; prudent Hep for the intereft of his employ- 
 ers. The cargo was accordingly fold and paid 
 for. The fhip was alfo contracted for, but the 
 perfon who had agreed to buy her, run away, 
 and the captain left her in a creek near New 
 York, and returned to England, where he ar- 
 rived in the February following, and gave the 
 plaintiff notice of what had been done, which 
 was the firll information he received of it, and 
 the plaintiff immediately claimed as for a total 
 fofs, and offered to abandon. 
 
 The jury found a verdict for a total lofs ; and 
 upon motion for a new trial, Lord Mansfield 
 ftated the law in cafes of recapture as eftablifhed 
 by the twp decifions, Hamilton againjl Mendes, 
 
 and
 
 Total Loss in Policies on Interest. 297 
 
 and Gcfs ag<iinjl Withers ; " that if the voyage 
 " is loft, and not worth purfuing, if the falvage 
 ** is high, if farther expence is neceffary, if the 
 *' infurer will not, at all events, undertake to 
 '* pay that expence, &c. the infured may aban- 
 " don, notvvithftanding a recapture." His Lord- 
 fliip applied thefe principles to the circumftances 
 of the prefent cafe ; and likewife lliewed that 
 the lofs was not imputable to the captain, who 
 had a61:ed ufefuUy and for the beft. And the 
 Court unanimoully difcharged the rule. Douglas 
 Reports, i^d June i^-jg*. 
 
 Edmonston againjl Jackson. 
 
 In" September 1776, the fhip Duntreath^ht- 
 longing to James Edmonjlon was, by PViUiam 
 Jackfojiy infured at L. 1300 *' from Grenada to 
 *' Florida, and from Florida to Grenada." 
 
 At the date of this policy, the Ihip had, in 
 profecution of the adventure, arrived at Florida. 
 In returning, it was, on the 29th November, 
 taken by an American privateer ; retaken about 
 five weeks after, and carried to Rhode Ifland. 
 From Rhode Ifland it was carried to New York, 
 and there underwent a thorough repair ; the 
 expence of which, with the falvage, amounted 
 to L. 658. It remained at New York till Janu- 
 ary 1778, when it proceeded on its voyage to 
 Grenada ; but was takeii again by the enemy, 
 retaken and carried into Grenada. From the 
 
 P p fccond 
 
 • See a different and malignant account of this decifion ;n 
 Wejkett. p. 4.
 
 298 Nature of an Insurance Contract. 
 
 fecond capture it had received no damage ; but 
 no perfon appearing at Grenada in behalf of 
 the owners, it was appraifed and fold, by order 
 from the court of Admiralty there, and the pro- 
 ceeds, which amounted to L. 1045, depolited, af- 
 ter payment of the falvage and other charges, in 
 the hands of the keeper of the Admiralty -re- 
 gifler. 
 
 Mr Edmondjion fued the underwriters be- 
 fore the Court of Admiralty in Scotland ; i/?, 
 for L. 658, as the amount of falvage and re- 
 pairs at New York ; and, idly, for L. 1 300, be- 
 ing the v/hole fum underivritten on the policy, 
 upon the fuppoiition that the fecond capture, 
 with the fubfequent proceedings at Grenada, 
 were to be conlidered as a total lofs ; and the 
 affured offered to abandon the proceeds of the 
 lliip, lodged in the Admiralty-regiller of Gre- 
 nada. 
 
 To the firlt conclulion no objedlion was made \ 
 but in anfwer to the fecond, it was objeded, that 
 the infured was entitled only to the falvage paid 
 to the recaptors, and the other charges incurred 
 in bringing the Ihip to Grenada. The Admi- 
 ralty fuitained the infurer's defence ; and when 
 the cafe came under the review of the Court of 
 Seffion, it M^as pleaded by the infurer : 
 
 That as the firft capture had been fettled by 
 parties, upon the footing of an average lofs, the 
 quellion at iffue muft depend on the events fub- 
 fequent to the iliip's departure from New York. 
 
 That
 
 Total Loss in Policies on Interest. 299 
 
 That where, notwithftanding a capture, a fhip 
 had arrived at her deilined port, without any 
 material damage, before adion brought, or of- 
 fer to abandon, the infured were only entitled 
 to an average lofs. That here there was no 
 other damage incurred by the capture than the 
 falvage due to the recaptors, which amounted 
 only to an eighth of the value, and was no fuch 
 lofs as could entitle the afTured to abandon. As 
 for the fubfequent appraifement and fale, thefe 
 arofe from the negligence of the owners them- 
 felves, who ought to have claimed the fliip from 
 the recaptors, upon its arrival at Grenada. 
 
 The Court laid out of view the events pre- 
 ceding the fhip's departure from New York j 
 and found, — " That in this cafe the alTured was 
 " not entitled to abandon on account of the fe- 
 " cond capture ; and that the infurer was only 
 *' liable for a partial lofs." Fac. Coll. Feb. i. 
 1780, 
 
 The following cafes, which are of a more 
 mifcellancous nature, afford farther illuftration 
 of the fame general principle. 
 
 Dacosta v. Firth. 
 
 A policy was underwritten by Dacqjla the 
 plaintiff, " upon any of the packet-boats that 
 *' fliould fail from Lifbon to Falmouth, or fuch 
 *' other port in England as his Majefty Ihould 
 *' direct his packets appointed between Lifbon 
 *' and England, for one whole year, commcn- 
 
 ** cing
 
 300 Nature of an Insurance Contract. 
 
 " cing I ft October 1764 inclufive, upon any 
 " kind of goods and merchandifes whatfoever." 
 And it was agreed that the goods and mer- 
 chandifes Ihould be '* valued at the fum in- 
 ** fured on fuch packet-boat, without further 
 " proof of intereft than the policy ; and to make 
 ** no return of premium for want of intereft ; 
 *' the policy being on bullion or goods." 
 
 The defendant Mr Firth, who was one of the 
 aflured, had an intereft in bullion on board the 
 Hanover packet, being one of the King's packets 
 between Liftjon and Falmouth. 
 
 On the 2d of December 1763, this packet was 
 totally loft off* Falmouth, in a voyage between 
 Lift)on and Falmouth : And the lofs was adjufted 
 in writing, under the policy, in the words fol- 
 lowing. 
 
 " Adjufted a lofs on this policy, at L. 100 
 ^'' per cent, the Hanover packet, Captain Sherborn, 
 ** being totally loft at Falmouth. — Should any 
 " falvage hereafter be recovered, the infured 
 ** promifes to refund to the infurers whatever 
 ** he may fo recover, in fuch proportion as the fum 
 " infured bears with the whole interejl. London, 
 ** 23d Odober 1764, for Richard Seivard, — - 
 " Michael Firth,'' 
 
 Da Cofla accordingly had paid the total lofs. 
 In April 1765, the iron-trunk, which contained 
 all the bullion, was fiftied up, and thereby all 
 the bullion recovered, without any lofs or preju- 
 dice whatever, and delivered to the defendant. 
 
 And
 
 Total Loss in Policies on Interest. 301 
 
 And now the underwriter purfues the defendant 
 to recover back what he had paid him, upon this 
 ground, that there has been no lofs incurred ex- 
 cept the falvage. 
 
 The aflured defends principally, that the que- 
 ftion had been already adjufted as a total lofs. 
 By the adiullment, he was only to repay for the 
 goods recovered, " in the proportion of the fum 
 ** infuredto the whole intereft." It had happen- 
 ed, by accident, that his particular property had 
 been recovered ; but that did not entitle the un- 
 derwriter to retract his agreement. As the fum 
 infured was not equal to the whole intereft, he 
 was not bound to refund the v/hole bullion re- 
 covered, but a certain proportion, equal to L. 48, 
 4 s. Sterling, which he paid into Court accord- 
 ingly. 
 
 The Court agreed, that this was a policy of a 
 peculiar fort ; it was partly a wager policy, tho' 
 within the exception of Stat. ig.Geo.ll. f. 37. 
 partly a valued policy, and fairly fo ; and the in- 
 furer having agreed to a total lofs, cannot now 
 difpute it. 
 
 The cafe of Lewis v. Rncker ; Hamilton v. 
 Mendez; and Gofs v. Withers, were only, *' that 
 " where the average lofs appears before ad- 
 '•^ jufiment, the underwriter ftiall pay only the 
 •' real damage." Here there was a total lofs at the 
 time of the adjuftment. Per Cur. Judgment for 
 the defendant. 4. Burr, i, Nov, 1766. 
 
 Cazalet
 
 302 Nature of an Insurance Contract. 
 
 Cazalet and others againjl St Barbe. 
 
 This caufe was tried at the fittings after Hil- 
 lary Term, 1786, when the following cafe was 
 referved for the opinion of the Court : — -That the 
 defendant underwrote the policy upon the fhip 
 FriendJJjip, from Wyherg to Lynn^ to the amount 
 of L. 100. That the damages fuftained by the 
 Ihip in the voyage infured, do not exceed L.48 
 per cent, which fum the defendant hath paid into 
 Court. — That when the fliip arrived at the port 
 of Lynn., fhe was not worth repairing. 
 
 The quellion for the opinion of the Court is, 
 whether the plaintiffs have a right to demand for 
 a total lofs. 
 
 WiLLES, J. — The finding of the jury in this 
 cafe, is decifive, that the damage did not exceed 
 L. 48 per cent. — The cafe ftates, that the fiiip 
 was not worth repairing ; but no mention is 
 made of what was her real worth ; fo that the re- 
 maining materials of the Ihip, if fold, may make 
 up the difference between L.48 and L. 100 per 
 cent. There has been no lofs, either of the Ihip, 
 or of the voyage ; but being an old fliip, ihe fuf- 
 fered fo much, that Ihe was not worth repairing. 
 
 As HURST, J. — It does not appear, that the 
 vefTel's not being worth repairing, arofe from 
 damage fuftained in the voyage. The jury have 
 found the lofs to be partial. 
 
 BuLLER, J. — There can be no abandonment 
 
 Vv^itjiout a total lofs, either of the fhip, or of the 
 
 ^ voyage ;
 
 Total Loss in Policies on Interest. 2cz 
 
 voyage ; but here neither is loft. — Judgment for 
 the defendant. Tennly Rep. — Eajler 1786. 
 
 Manning againjl Newnham. 
 
 A Dutch fhip, which had been loaded at 
 Surinam, was brought into Tortola as a prize ; 
 and was infured witli her cargo and freight " at 
 *' and from Tortola to LondonJ'^ — The infurer, to 
 be free from particular average, valued at the 
 fum infured, though particular parts of the cargo 
 were likewife valued feparately. 
 
 Soon after failing, the fhip fprung a dan- 
 gerous leak, which obliged her to return to Tor- 
 tola, and unload. It was found, that fhe was, in 
 her prefent fituation, unfit for a long voyage, 
 and ihe could not be repaired, either at Tortola, 
 or St Thomas. — She was therefore condemned, 
 and fold for L. 1500 currency. There was no 
 proof of any fpecial damage to the cargo ; but 
 no fliip could be had large enough to carry the 
 whole of it. It was therefore fold at Tortola for 
 a fum within L. 700 of the value in the policy. 
 If it had arrived in London, the aflured would 
 have made a profit of many thoufand pounds. 
 He purchafed two thirds of it, which, at the time 
 of this action, were ftill on the fea, in other fhips 
 under infurance. 
 
 The defendant proved. That fome of the da- 
 mages were old, fome recent. He contended, 
 there could be no total lofs, while fo large a pro- 
 portion
 
 304 Nature of an Insurance Contract. 
 
 portion of the cargo remained, and was coming, 
 under infurance, to Britain. And he endeavour- 
 ed to excite a fufpicion that the affured, who had 
 taken the average lofs on themfelves, had con- 
 verted a partial into a total lofs ; efpecially, as 
 the infurers had no agents at Tortola, but the af- 
 fured. — The jury found a verdi6l for the plain- 
 tiff, as for a total lofs.— -Motion for a new trial. 
 
 Lord Mansfield, after ftating the evidence, 
 faid, This cafe had been left with the jury as an 
 average lofs, but they had found a total one. 
 The Court had confidered it much, and are all 
 of opinion, that the jury are right, and that there 
 is no bringing this cafe out of the general rule, 
 which is, *' if the voyage^ in confequence of pe- 
 '* rils within the policy, be totally defeated, or 
 ** not worth purfuing, there is a total lofs ; but 
 " if the voyage can Itill be purfued, the afTured 
 " lliall not abandon." There are three fubjedls 
 of the infurance ; fhip, freight, and cargo. The 
 fhip is totally unfit for the voyage, and irrepa- 
 rable ; no other fliips are to be found ; mufl the 
 affured wait till there are? It did not appear 
 likely to happen foon. The fame arguments ap- 
 ply to the cargo as to the fhip. The voyage does 
 not continue, becaufe a part of the cargo is flill 
 at fea, on infurance, in other fliips. If the voyage 
 continued on thefe other fhips, freight would be 
 due pro rata. But it is admitted, the freight is 
 totally gone. On all thefe grounds, we are of 
 opinion, the voyage is totally loft ; it is confo- 
 
 nant
 
 Total Loss in Policies on Interest. 305 
 
 nant with all the cafes ; and it is better to ad- 
 here to general rules than to introduce nice dif- 
 tinctions. — Rule diicharged, Trin, 22. Geo. III. 
 MS. 
 
 Gavin Kempt atid Co. againjl Glen. 
 
 Certain goods belonging to Gavin Kempt and 
 Company, were infured, by Williajn Glen, and 
 others, on a voyage from Clyde to Antigua» The 
 fhip failed from Greenock on i8th Nov. 1782. 
 On 7th December, fhe was overfet in a gale of 
 wind, but was foon brought to rights, and pro- 
 ceeded in the voyage* 
 
 On 24th January following, fhe was captured 
 by the enemy, was retaken on 26th ; and, on 
 29th, arrived at the place of deflination in Anti- 
 gua. 
 
 Afterwards, in confequence of an application 
 in behalf of the owners, the goods were fold by 
 authority of the Admiralty. No regular appretia- 
 tion was made ; and from the account of fales, 
 a very few articles appeared to have been dama- 
 ged. But the prices fell more than 50 per cent, 
 below the infured values. 
 
 The owners brought their adion againfl; the 
 underwriters, before the Court of Seffion, for a 
 total lofs. 
 
 The underwriters urged, that the damage oc- 
 cafioned in the courfe of the voyage appears to 
 have been very trilling, and not fuch as to entitle 
 the allured to abandon. As to the fall of the 
 prices below the values fpecified in the policy, 
 
 0^4 that
 
 3o6 Nature of an Insurance Contract. 
 
 that mull have been the effedl, either of fraudu- 
 lent over- valuation, or a fall of the market, for 
 neither of which the inilirers are refponfible.— 
 The aflured were found not entitled to claim as 
 for a total lofs. Fac. Coll. June \6. 1786. 
 
 6. When a vojage is defeated in this manner, 
 it is no objection to the aflured's right of aban- 
 doning, that he can recover a part of the value 
 of the adventure, nor is that to be deducted from 
 his claim againft the infurers. When the voyage 
 is once defeated, he may come upon the under- 
 writers in the firll place, leaving them to recover 
 what they can, at their own labour and charges^ 
 
 pRiNGLE againft Hartley. 
 
 A bill in chancery was brought for relief a- 
 gainft a verdid and judgment given in the Court 
 of Common Pleas, upon a policy of infurance, 
 and to have an injundion to ftay execution upon 
 the judgment : The cafe appeared to be, that 
 the fhip infured was taken by a Spanifh priva- 
 teer ; and that after it had been carried infra 
 hojlium prajidia, it was retaken by an Englilh 
 privateer. — It was argued for the now plaintiff, 
 who was the defendant at law, that although by 
 the law of nations, the firll capture of the fhip, 
 and its being infra hoflium prafidia^, had abfo- 
 lutely divefled the right of the original proprie- 
 tors, yet that now, by the flatute made in the 
 year 1740, it is otherwife, being thereby pro- 
 idded, that if the fhips of our Englifli merchants 
 
 lliould
 
 Total Loss in Policies on Interest. 307 
 
 Ihould be taken by an enemy, and afterwards 
 retaken by any of his ISIajelly's fubjects, the 
 right of the original proprietors in fuch fiiips 
 fhoiild be referred, on their paying one moiety 
 of the value to the recaptors for falvage : 
 Upon this it was argued, that the verdidt 
 and judgment are unjuft, in regard that the 
 whole infurance money is given in damages, 
 when it appears that the plaintiff at law, upon 
 payment of one half of the value of the ihip, might 
 recover it back, and therefore that one half of the 
 infurance money ought only to have been given in 
 damages ; upon which the injundion prayed by 
 the bill was moved for. On the other fide, it 
 was infilled that this was a right verdidt, and 
 that the infured was not to be put to the delay, 
 expence and trouble, of afcertaining the value of 
 the fliip, in order to recover it back, upon pay- 
 ment of one moiety of the value to the captors : 
 That for recovery thereof, the infurers might 
 {land in the place of the infured, and make ufe 
 of their names, as had been offered : That 
 they did not pretend to oppofe fo much of the 
 bill as fought this ; but infilled that this could 
 be no ground for granting the injunclion pray- 
 ed : That this point had been debated before 
 Lord Chief Juftice Willes, upon trial of the iHue 
 at niji prhis^ who had declared his opinion, ** that 
 *' this right oi fahage ought not to preclude the 
 ♦' iniured from their recovery upon the infur- 
 *' ance, till the falvage fhould be fettled ; that 
 
 " the
 
 3o8 Nature of an Insurance Contract. 
 
 " the defendants, the infurers, would be entitled 
 ♦* to Hand in the place of the infured, to make 
 " what advantage they could of the falvage." 
 
 Lord Hardwicke, Chancellor, being of the 
 fame opinion, refufed to grant the injunftion ; 
 and faid, that the damage in recovering the fal- 
 vage, is as much a part of the infurance as the 
 Ihip itfelf. DiSl. Tr. and Com. 148. Mich. 18c 
 Geo. 11. '^.Atkyns^i^^* 
 
 II. With regard to wager policies upon a 
 common mercantile voyage, there cannot, it 
 may be obferved, be any abandonment ; becaufe 
 the owner has no intereft which he can cede to 
 the underwriters. It is exceedingly material, 
 however, in thofe infurances, to afcertain what 
 is to be held as a total lofs ; for they necelTarily 
 contain a claufe " free of average, and without 
 " benefit of falvage to the infurer." That is, 
 the underwriter fnall be liable for no partial 
 lofs, and fhall reap no benefit from any part of the 
 Ihip or cargo that fliall be faved : So that it is ne- 
 celTary to fix what fhall be held a total lofs, in order 
 to fettle what fhall be the criterion of the bett. 
 
 From this claufe, ** free of average," in a 
 wager policy, when taken literally, it may feem 
 to follow, that no lofs can fall upon the infurer, 
 except fuch a one as implies the total deftrudlion 
 of the fubjed infared j for example, the dema- 
 
 litioa
 
 Total Loss on a Wager Policy. 309 
 
 lition of the hulk of the velTelby fire, her founder- 
 ing, or her being captured. 
 
 It docs not, however, appear agreeable to the 
 fpirit of the policy in fuch cafes, to confine the 
 wager to the mere prefervation of the hulk of 
 the (hip. It feems to be the 'voyage that is the 
 fubj eel of the bett ; and if the voyage is defeated 
 from any of the dangers fpecified in the policy, 
 it has been generally underftood that the wager 
 is gained by the aflured. 
 
 The Englilli decifions upon this fubjedl are ex- 
 tremely voluminous ; particularly if we may be al- 
 lowed to confider as authentic thofe which were 
 produced and appealed to in the remarkable cafe 
 Fitzgerald v. Pole before the Houfe of Peers. And 
 we are the more difpofed to lay hold of thefe deci- 
 fions now mentioned, becaufe the other adjudge 
 ed cafes upon the fame point, are delivered with 
 very little perfpicuity. The queftion itfelf may 
 perhaps appear, fince the ftatute 19. Geo. II. againft 
 wager infurances, rather a matter of curiofity than 
 practical utility. But as wager policies are ftill 
 legal upon privateers^ foreign Jlnps, and Spanipj 
 trade, it cannot with propriety be omitted. The 
 "decifions upon it may be laid down under fome 
 arrangement. 
 
 I . And firft, where the failure of the voyage 
 has arifen from feizure, detention, embargo, or 
 circumftances of a like nature ; the lofs is total, 
 and the condition of the wager is incurred. 
 
 Hancury
 
 5IO Nature of an Insurance Contract. 
 
 Hanbury and King. 
 
 Infurance on the Anna, at and from any port 
 or place, or degree of latitude, wherefoever the 
 fhip might be on the 7th May 1741, till her arrival 
 at London, inter eft or no interejl, free of average, 
 &c. This fhip was a tender to the fleet fent to 
 the South Sea under the command of Lord An- 
 fon, and proceeded to Juan Fernandez, where 
 fhe was difcharged the King's fervice : But be- 
 ing in want of ftores to return to England, (he 
 was fold for the ufe of the fleet by the captain 
 for L. 300, for which he received a bill on the 
 commiffioners of the navy, afterwards paid to 
 the plaintiff, the fole owner, together with the 
 freight, and all the failors wages, to the time of 
 the fale of the fhip. The plaintiff and owner 
 alfo received L. 6410 for the freight of the out- 
 ward bound voyage, and L. 2590 as feven 
 months freight, being the time computed the 
 ihip would have taken to return home. An ac- 
 tion was brought on the policy • and although 
 it was inlifted for the defendant, that the fhip 
 had not been dellroyed by any peril in the poli- 
 cy, but fold by the owner for the ufe of govern- 
 ment ; and that the infured had adually receiv- 
 ed a price and freight for her, as having per- 
 formed her homeward bound voyage ; fo that 
 if there was any lofs in point of value, it would 
 only be a partial and average lofs, which was 
 exprefsly not to charge the infurers : Yet upon 
 
 all
 
 Total Loss on a Wager Policy. 311 
 
 all the above fads, (agreed between the parties) 
 as the fhip had been rendered incapable of per- 
 forming the fervice for which fae was fitted out, 
 viz. attending the fleet in the South Seas, and 
 home, the plaintiff recovered a verdicl for a total 
 lofs, bv a fpecial jury, agreeable to the directions 
 of the Court. Micb. 19. Gi^o. 11. B. R. 1746 *. 
 
 Barclay a7id Collier. 
 
 Infurance on the Ludlow Cajile man of war, 
 from Jamaica to England, inter eft or no inter ejly 
 free of average ^ &.c. This fhip was, in her voyage, 
 compelled, by a florm at fea, to put into Anti- 
 gua, where Admiral Kriowles, being in want of 
 a hulk for his Majefty*s fervice, thought proper 
 to convert the Ludlow Cajile to that ufe. — The 
 treafure on board her was brought home in the 
 Scarborough. — The infared brought his adtion ; 
 and though it appeared in evidence that the fhip 
 was exifling, it was determined, and by a fpecial 
 jury a verdict given accordingly, that the voy- 
 age from Jamaica being loft, the plaintiff was 
 entitled to recover, which he did. Mich. 17. 
 Geo. II. B. R. See Fitzgerald v. Pole. 
 
 In the following cafe, however, an oppofite 
 decifion feems to have been given. 
 
 Spencer 
 
 * Appealed to in the cafe oi Fitzgerald v. Pole, before the 
 Houfc of Peers.
 
 312 Nature of an Insurance Contract'. 
 
 Spencer v. Fr.anco. 
 
 The plaintiff caufed himfelf to be infured on 
 the Prince Frederick^ " from Vera Cruz to Lon- 
 ** don, inter ejl or no interejl, free of average, and 
 ** without heiiefit offalvage^ 
 
 There was a war between England and Spain, 
 and Gibraltar adually befieged by the Spaniards. 
 The Ihip was feized, by order of the Viceroy 
 of Mexico, and turned into a man of war, 
 called the St Philip, and fent as Commodore, 
 with a fquadron of Spanifh men of war, to the 
 Havanna. The defendants proved the ligning 
 of preliminary articles of peace before the fei- 
 zure of the fhip ; and therefore inlifted, that 
 this feizure did not alter the property, and con- 
 fequently the defendants were not liable ; for 
 if the property was not altered, this infurance 
 made by the plaintiff, who had no intereft, can- 
 not bind, as nothing comes within the policy 
 but a total lofs ; and though there be thefe ge- 
 neral words in the policy, reflraint or detainment 
 by Princes, Hardwicke, Chief Juflice, declared, 
 i/?. That a war might begin without an adlual 
 declaration by proclamation \ as, in this cafe, 
 by laying liege to Gibraltar, a garrifon town ; 
 idly. As a war may begin by holtilities only, fo 
 it may end by a celTation of arms ; and thefe preli- 
 minary articles being figned before the feizure of 
 the ihip, and there being a celTation of arms, he 
 
 thought
 
 Total Loss on a Wager Policy. 313 
 
 thought the fhip being taken afterwards, not to 
 be a taking by enemies, unlefs the jury took the 
 capture to begin from the time the arms were fei- 
 zed, which was before the articles, and that was 
 left to the jury : ^dly, Suppofing the fliip not ta- 
 ken by enemies, qua re, Whether this detention, 
 for near the fpace of a year, was, in thofe forts of 
 policies, intereji or no interejl, a detention with- 
 in the policy ; or whether in fuch policies, the 
 infurers are ever liable^ but in c^fe of total lofs ? 
 And if fo, this fhip being afterwards rellored, 
 then he directed the jury to find for the defen- 
 dant : This, he faid, depended on the cujlom or 
 ufage among merchants. — The jury gave a ver- 
 did for the defendant, but did not declare upon 
 what point ; but they muil be of opinion, fhe 
 was not feized in time of war, and that, there- 
 fore, the policy being, intereji or no intereji, the 
 alTurers were not liable, becaufe there was no 
 total lofs.— -Lex Merc. Red. 287. At Guildhall^ 
 i^tb Dec. 1736. 
 
 In the fame manner, the rule holds, where 
 a voyage has been defeated by a capture. There 
 feems to have prevailed an idea, that a cap- 
 ture, by changing the property of the fuhjetl, 
 inferred a total lofs, although the velTel fliould 
 be afterwards retaken : At leaft, it feems to 
 have been confidered as enough, that the veflel 
 was once lofl, to bring the cafe within the intend- 
 ment of the wager ; and it does not appear that 
 fo much attention was paid to the circumflance, 
 
 R r whether
 
 314 Nature of an Insurance Contract. 
 
 whether the voyage was defeated by the capture, 
 or not. In every cafe that occurred of capture 
 and recapture, there feems to have been an ela- 
 borate argument, with regard to what confti- 
 tuted a capture, by the civil law, and by the 
 cuftoms of modern Europe*, until Lord Mans- 
 field, in the cafe of Gofs and Withers^ formerly 
 ftated, fhewed, that the enquiry was of no con- 
 fequence. 
 
 Dean 1;. Dicker. 
 
 This was an infurance on goods by the Dur- 
 Jley galley, intereji or no interejl, at and from Ja- 
 maica to Brijlol. In her paflage, Ihe was taken 
 by a Spanifi privateer, and carried into MoreSy 
 a port in Spain j kept eight days, and then cut 
 out by an Englijh fliip. And the plaintiff infill- 
 ing, that this, though on goods, was to be confi- 
 dered as a wager on the bottom of the fliip, 
 brought his adion as upon a total lofs. The de- 
 fendant infilled, that, by the ftatutes 13. Geo. II. 
 c. 4. and 17. Geo. II. c. 34. this Ihip is to be re- 
 llored to the owners, paying falvage, and confe- 
 quently, this is only an average lofs, and the 
 plaintiff can only recover upon a total one. But 
 the Chief Juflice held, that, in this cafe, the 
 plaintiff ought to recover ; for this is a wager 
 upon a total lofs in the voyage, and here has hap- 
 pened one; for the being carried into port, and 
 detained eight days makes one. And where a 
 policy is interefl or no intereji, the provilions of 
 the ads in the cafe of valued policies cannot 
 
 take
 
 ToTAi, Loss ON A Wager Policy. 315 
 
 take place. The a(5t does not declare the pro- 
 perty is not gone by fuch a capture, but only 
 provides for refloring the fliip to whom it be- 
 longed. He faid it might be otherwife, where 
 the recapture was before the Ihip was carried 
 infra prcejidiay or in the cafe of goods adually on 
 board, and upon a valued policy. Strange 1250. 
 19. Geo. II. 
 
 Whitehead aiid Bance, 
 
 Infurance, *' on the Difpatch galley, interejl or 
 " no interejl J free of average^ l^c. from Jamaica 
 " to Hull." In her voyage flie was taken by a 
 French privateer, and carried to Hamburgh ; 
 and after being twelve days in the hands of the 
 enemy, fhc was taken by Hurjl, mailer of an 
 Englilh fhip, and brought to London, where 
 fhe was adjudged to be reftored to the owner, 
 paying falvage. The owner fold the fhip and 
 paid the falvage. An acftion being brought on 
 the policy, notwithftanding the fhip had not 
 been loft, but was fold by the owner, it was held 
 to have been a lofs of the voyage ; and the fpe- 
 cial jury gave a verdicfl accordingly. Mich. 
 23. Geo. II. 1749. In Fitzgerald v. Pole. 
 
 De Paiba V, Ludlow. 
 
 Adion upon a policy of infurance, where the 
 defendant infured the plaintiff, ** interejl or no 
 *' interejl^ againft all enemies, pirates, takings at 
 " fea, and all other damages whatfoever.'' — It 
 appeared, that the fliip was taken by a pirate of 
 
 Sweden,
 
 3i6 Nature of an Insurance Contract. 
 
 Sweden, and was in his pofleflion for nine days,, 
 and then was retaken by an Englifh man of war, 
 and, after the fuit commenced, brought into 
 Harwich. The queftion was, whether in fuch 
 cafe, the defendant was refponlible, — And it was 
 referved by the Chief Jultice for the opinion of 
 the Court ; and after argument by Serjeant Whi- 
 taker, for the plaintiff, and by Br Henchman for 
 the defendant, it was determined for the plain- 
 tiff. — For though it was objeded, that the in- 
 furcr was only refponlible where the plaintiff 
 had a property, and that the cuftom of infuring 
 interejl or no interejly was introduced lince the 
 Revolution ; yet it was faid that fuch infurance 
 was good : And the import of it is, that the 
 plaintiff has no occafion to prove his intereft, 
 and that the defendant cannot controvert that. 
 — And though the Ihip was here retaken, yet 
 the plaintiff received a damage, for his voyage 
 w^as interrupted ; and the queftion is not, whe- 
 ther the plaintiff had his Ihip, and did not lofe 
 his property ; but what damage he fuftained.— 
 Comyns 360. Mich, 7. Geo. I. 
 
 The reafonings in the following cafe are not 
 fupported by the verdid:. 
 
 Daubony v. Read. 
 The Broomjield was infured by the defendant 
 " at and from the Leeward Iflands to Briftol, 
 *' interejl or no interejl , free of average lojs, and 
 ** without henefit of Jalvage,^'' — The fhip on her 
 paffage home was captured by a Spaniard ; but 
 
 after
 
 Total Loss on a Wager Policy. 317 
 
 after having been in polTellion of the enemy 
 thirty-nine hours, fhe was retaken by the Ter- 
 rible privateer belonging to Liverpool, and car- 
 ried into Waterford, and afterwards to Liver- 
 pool ; where, after a commiffion of appraifement 
 from the Admiralty, flie and her cargo were 
 fold to pay the falvage due to the recaptors.— * 
 One of her former owners now bought the 
 whole, and afterwards parcelled her out among 
 feveral gentlemen at Brillol, to which place fhe 
 was again ordered, and where flie arrived. The 
 plaintiif maintains this could not be an arrival 
 agreeable to the meaning of the policy in que- 
 ftion, under the circumftances above flated of 
 her capture, recapture, appraifement, and fale, 
 and with an entire new fet of owners ; he there- 
 fore thinks he is entitled to a total lofs. 
 
 The defendant, on the contrary, argues, that 
 this was no more than a bare capture and recap- 
 ture, which, he fays, has never been deemed a 
 total lofs. In reply to which, the plaintiff af- 
 firms, that this was ftill more ; for the fliip, af- 
 ter being retaken, Hvas carried into Waterford 
 by the privateer, kept fome confiderable time 
 there, afterwards was carried into Liverpool, 
 and there, with the cargo, appraifed and fold to 
 pay the falvage, and a new fet of owners enga- 
 ged, before fhe fet out for Briftol, by which the 
 whole voyage was altered and loft. Verdict for 
 the defendant. Lex Merc: Red. At Guildb. af- 
 ter Mich. iJs^' 
 
 ASSIEVEDO
 
 31 8 Nature of an Insurance Contract. 
 
 AssiEVEDO 1), Cambridge. 
 
 Upon a fpecial verdict, it appeared, that Affi- 
 evedo had infured a fum of money, upon a ftiip 
 called the Rutbf for a particular voyage, with- 
 out having been at all concerned in point of in- 
 tereft. The fhip was taken by the enemy, and 
 kept in their pofTeffion for nine days, and then, 
 before it was carried infra prcejidia, it was reta- 
 ken by an Engiifh man of war. The queftion 
 was, Whether this was fuch a taking as fhould 
 entitle the plaintiff to recover the fum infured 
 againft Cambridge ? 
 
 It was argued for the plaintiff, that this was 
 rather a wager than an infurance. That it is of 
 no confequence, whether this is fuch a taking 
 as will divefl the property out of the owners, 
 but whether the Ihip is taken. The cafe was 
 compared to a man laying a wager ^ that he fliould 
 not be robbed in going to fuch a place ; he is 
 robbed ; but taking feme perfons along with 
 him, purfues the robber, and recovers what he 
 loft : here, though the money is recovered, yet 
 the wager is loft. So if the wager had been, 
 that fuch perfons fhould not be married toge- 
 ther ; they are married, and afterwards divor- 
 ced prcecontraEliis caufa \ yet the wager is loft. 
 It was faid farther, that, without this expofition, 
 Cambridge would have two chances, viz. that it 
 is not taken, or that it is retaken ; but AJfievedo 
 would have but one, viz. the taking. It was 
 likewife argued, that, by the law of modern na- 
 tions,
 
 Total Loss on a Wager Policy. 319 
 
 tions, fuch a capture as the prefent would diveil 
 the property ; the vefTel having been in the ene- 
 mies poffeffion for more than 24 hours. 
 
 For the defendant, it was maintained, that no 
 taking but what divefted the property could be 
 fuppoled to entitle a perfon who had infured up- 
 on real intereft, to recover againft the infurer ; 
 and furely a wagerer, or one who procured him- 
 felf to be aflured without real intereft, ought not 
 to be put in a better fituation. And as to what 
 divefted the property, the rule of the Roman 
 law was reforted to, which required the veflel 
 to be carried hifra prcejidia ; as well as the prac- 
 tice of the Court of Admiralty in England *. 
 
 The Court feemed to be of opinion for the de- 
 fendant. They thought that the plaintiff" being 
 found to have no intereft in the ftiip infured, 
 could make no difference in his favour ; and, 
 that the property was not divefted by the cap- 
 ture, they held to be clear. 
 
 The cafe was not decided. Lucas yj. Hill. 10. 
 A?in. B, R. 
 
 III. It remains to confider that peculiar fpc- 
 cies of infurance, which takes place upon priva- 
 teers, or upon cruijing expeditions, in which the 
 ftiip generally is not infm-ed for a certain fpeci- 
 fied courfe, but for a certain limited time. This, 
 it has been feen, is the only kind of wager-poli- 
 cy at prefent permitted in this country, upon 
 Britifti ftiips. 
 
 By 
 
 * Terremoulin v. Sands, i. Raym. 271.
 
 320 Nature of an Insurance Contract. 
 
 By former pradice, infurances on privateers 
 were generally executed as wager-policies, " in- 
 " terefl or no intereft," — whether the afliired 
 had intereft or not. 
 
 In thefe the fame queftion occurred, as with 
 regard to common wager-policies ; whether the 
 underwriter is liable, in confequence of the 
 criiife (that is the adventure) being defeated^ or 
 merely in confequence of the demolition of the 
 hulk of the vefTel ? 
 
 At a former period, the idea feems to have 
 been, that, in thefe wager privateer infurances, 
 the cruife was the adventure ; and whatever de- 
 feated the cruife within the date of the infu- 
 rance^; whatever prevented the privateer from 
 being in a fituation to cruife at the expiration 
 of the policy, implied a total lofs, and fubjecled 
 the underwriters for the bett. 
 
 Pond v. King, 
 
 Upon a fpecial verdi6l, it appeared, that the 
 plaintiff had made infurance upon the Salaman- 
 der privateer, " intereft or no intereft, free of 
 " average, and without benefit of falvage to the 
 *' infurer." The defendant underwrote two fe- 
 parate lOo pounds at different times on the policy. 
 The fhip failed on the 24th of December, and 
 was taken by the French on the 2d of February 
 following, after an engagement of more than an 
 hour, with a much fuperior force ; and feveral 
 of her men had been killed and wounded. Af- 
 terwards, 117 of her men, including the captain 
 
 and
 
 Total Loss in a cruising Adventure. 321 
 
 and all the officers, moft of her fmall arms, and 
 the commiffions, were removed into the enemy's 
 lliip, and carried into France; only 17 Englifh 
 being left on board the Salamander^ of whom five 
 foon after died of their wounds. The fhip was 
 in the enemy's poffeffion for three days, when 
 ihe was retaken by the Hunter privateer, Captain 
 Veale, who put fome men aboard, and kept 
 her cruifing with him for eight days. After- 
 wards, being prevented by wind and weather, 
 from reaching a BritiQi port, Captain Veale 
 carried her to Li/bony where he took out of her 
 two carriage-guns, and a quantity of provilions 
 for his fhip's ufe. The captain of another pri- 
 vateer in company, likewife took out two other 
 carriage-guns. By all thefe circumftances, the 
 cruife was totally difappointed. 
 
 It was argued for the defendant, that a policy 
 made yr^^ of average, cannot affed the infurer 
 but by a total lofs. And that a total lofs was 
 prevented by the recapture. 
 
 For the plaintiff, it was argued, in the Jirji 
 place, that the property was diverted by the cap- 
 ture ; and, independent of this, that there had 
 happened fuch a damage as had difappointed the 
 adventure. The Court were unanimous in gi- 
 ving judgment for the plaintiff. Lex Merc. Red. 
 i^ji, 21. Geo,\\, I. WilfoUy 191. 
 
 Jenkins ij. Mackenzie. 
 
 The plaintiff made an infurance in London on 
 the T^ryal privateer, fitted out at Briflol, " for 
 
 S f '* two
 
 322 Nature of an Insurance Contract. 
 
 ** two calendar months, wherever the fhip might 
 " then be, on a cruife, or in any port or place 
 ** whatfoever or wherefoever ; the faid fhip to be 
 ** valued at — , inter eft or no inter eft, free of ave- 
 ** rage, and without benefit of falvage."** 
 
 The privateer failed from Briftol on the 29th 
 May 1 746, and, fome days after, Ihe was met by 
 a French privateer of fuperior force, who attack- 
 ed, and, after a brave defence, took her. 
 
 She had been in the enemies hands about eight 
 hours, without their removing any of her men 
 or ftores, when Admiral Martin, with his whole 
 fleet, appearing, retook the Tryal, and hearing of 
 the gallant behaviour both of Captain Jenkins 
 and his crew, they unanimoufly agreed to give 
 up their falvage to them. The Admiral ordered 
 the fhip to be furnifhed with all necelTaries, and 
 fent a man of war floop to fee her fafe into Brif- 
 tol, where fhe arrived the latter end of June, be- 
 tween three and four weeks before the infurance 
 expired. 
 
 Thefe circumflances, the plaintiff thinks, en- 
 title him to a total lofs, as the voyage was over- 
 fet, and the policy being intereft or not, will ad- 
 mit of no average. 
 
 The defendant agrees to the lafl affertion ; but 
 for that very reafon infifts he has no lofs to pay, 
 as he is free from a partial one ; and there can 
 be no total one, where the fhip is arrived, and 
 (as he infifls) might have been fitted out again 
 before the limited term of two months expired, 
 had the owners not determined the contrary : 
 
 And
 
 Total Loss In a cruising Adventure. 323 
 
 And befides, though the fliip was taken, yet as 
 Ihe was never carried infra prajidia of the ene- 
 my, or was fo taken as to be beyond a poffibility 
 of a recapture, and hath returned to Briltol, fo 
 long time the two months expired as was fuffici- 
 ent to refit her in, the defendant fuppofes that 
 the neglect of the owners ought not to be impu- 
 ted to the underwriter ; more efpecially as feve- 
 ral fhip-builders and merchants attended to 
 prove there was time enough for the repair. 
 Verdidl for the plaintiff. Lex Merc. Red. 283. 
 At Guildhall, Mich. Term 1749. 
 
 Jalabert and Nevill ■:;. Collier. 
 
 The Dartjnouth galley being fitted out as a 
 privateer in Oclober 1744, failed on a cruife ; 
 and the plaintiffs being concerned in her, got 
 infurance made on their part for one calendar 
 month, of which the defendant underwrote 
 L. 200. After being out two days, Ihe fell in 
 with two French men of war, and, after a very 
 gallant defence, was taken. A part of her crew, 
 however, taking advantage of circumftances, 
 contrived to efcape with the velTel from the 
 Frenchmen, and, in two days after, got fafe into 
 Dartmouth. Upon her arrival there, fhe was re- 
 fitted by the owners, and failed on another cruife. 
 After this the fhip was kept infured from month 
 to month, and the defendant underwrote feveral 
 fubfequent policies on her, without any demand 
 having been made upon the firfl ; although he 
 
 fettled
 
 324 Nature of an Insurance Contract. 
 
 fettled a lofs upon her, in relation to a policy, fix 
 months after. 
 
 The plaintiffs, however, have now claimed the 
 lofs, as the taking of the fhip entirely overfet the 
 cruife ; for fhe could not be-i^fitted and fail on 
 another, before the expiration of the month for 
 which (he was infured. 
 
 But in fupport of the contrary, it is alleged 
 by the defendant, and confirmed by the opinion 
 of feveral very confiderable merchants, that this 
 could not be counted a total lofs, more efpecially 
 as it is not on a cruife ; the words of the policy 
 being, " to be infured lofl: or not lofl; to any ports 
 " or places for one calendar month." And be- 
 fides, the fliip was fo far from being a total lofs 
 to the owners on the firfl: rifk, that fhe after- 
 wards met with very great fuccefs, by taking a 
 rich prize. And if this doftrine, offered by the 
 plaintiffs, had taken place with refpect to infur- 
 ances made for a time, every coalier might bring 
 this as a plea ; as they are always infured on 
 thefe terms ; though it was never apprehended 
 that every little accident which happened with- 
 in the time, and obliged them to refit, was deem- 
 ed a total lofs. — The plaintiffs were nonfuited, 
 becaufe unprepared to fliew the impoflibility of 
 her being fitted out again before the expiration 
 of the infurance. Lex Mercat. Rediv. 270. Tri?i, 
 1749. At Guildhall. 
 
 There appears, however, fomething unreafon- 
 able, not to fay abfurd, in confidering a priva- 
 teering
 
 Total Loss in a cruising Adventure. 325 
 
 tearing expedition in the fame light as any other 
 adventure. It is impoflible to fay, that a cruife 
 has been defeated, merely becaufe, at the termi- 
 nation of the term fpecified in the policy, the 
 privateer is not in cruifing trim. 
 
 Suppofe two or three days before the term ex- 
 pires, Ihe takes a very rich prize, after an engage- 
 ment ; and flie finds it neceffary to go into port to 
 refit. But the damage fne has fuftained is very in- 
 confiderable, compared to the value of her prize : 
 Will it be faid, that her adventure has been un- 
 fuccefsful, or that her cruife has failed, merely 
 becaufe Ihe happens to be repairing when a par- 
 ticular day arrives ? This would carry the abfur- 
 dity along with it, of allowing the aflured to 
 abandon, in confequence of fuccefs, and not of 
 ill fortune. Had the privateer met with no 
 prize, no repair would have been neceflary. But 
 it is a very ftrange interpretation to call that 
 a failure, the obtaining of which was the very 
 object of her voyage. 
 
 In fact, there can be no means of afcertaining 
 with accuracy, what defeats a cruifing expedi- 
 tion, except the demolition of the hulk of the 
 veflel. — For her being confined to port affords 
 no rule whatever. 
 
 This has been found accordingly in the follow- 
 ing remarkable cafe. 
 
 Fitzgerald v. Pole. 
 Peter Joyce being a part owner of one moiety 
 of a fhip, called the Goodfslloiv privateer, toge- 
 ther
 
 326 Nature of an Insurance Contract. 
 
 ther with the other owners, fitted her out to 
 cruife. Mr Joyce being himfelf the mafter of 
 the Ihip, and abroad, employed Meflrs Fitzge- 
 rald to get infurance done for his intereft and 
 ufe, in which Fole the defendant underwrote for 
 
 L. I GO. 
 
 The purpofe for which the Goodfellow priva- 
 teer was fitted out and employed, was totally de- 
 feated by a mutiny of the failors on board, their 
 defertion from her, and carrying off the fire- 
 arms belonging to the fhip, within the term of 
 four months, for which the infurance was made. 
 
 In an adion upon the policy, it was argued 
 for the plaintiff, that the original nature of infu- 
 rance was, no doubt, a contrad of indemnity, by 
 which the alTured was only to be reimburfed to 
 the extent of his real lofs. But that in the fubfe- 
 quent invention of 'valued policies, free from ave- 
 rage, and thofe, interejl or no interejl, it is the 
 performance of the voyage or adventure, in a 
 reafonable time and manner, and not the bare 
 exiilence of the fhip and cargo, that is the ob- 
 ject of the infurance, and fo it had often been ad- 
 judged. That, in an infurance on a fhip, as a 
 " privateer, to cruife during a limited time," 
 the cruife is the adventure ; and the fhip's capa- 
 city to cruife, notwithflanding the perils of the 
 fea, is the fubjedt-matter of the infurance ; and 
 this had been found by feveral decifions. 
 
 It was anfwered for the defendant, 
 
 i/?, That the infurer being, by the terms of 
 the policy, free from all average, the plaintiff 
 
 could
 
 Total Loss in a cruising Adventure. 327 
 
 could not be entitled to recover, but in cafe of a 
 total lofs ; and the Ihip being found by the fpe- 
 cial verdidl to be in good fafety, at her proper 
 port, at and after the end of the four months, for 
 which the infurance was made, there could be 
 no fuch lofs. 
 
 idly^ The fhip is alone infured, and not the 
 cruife. It is the Ihip alone that is repeatedly ex- 
 preffed in the policy, to be the thing infured. 
 Befides, it mull be the fubjecl itfelf expreffed, 
 and not any confequential benefit arifing from 
 it, that is meant to be infured ; for fuch confe- 
 quential benefit is uncertain, and incapable of 
 being eltimated. But, 
 
 3^/y, Suppofing the cruife to be the thing in- 
 fured, yet there is here no lofs of the cruife, the 
 vefTel having cruifed till within a fortnight of 
 the whole time, and taken a very rich prize, of 
 the value of L. 4200 Sterling. And, 
 
 /^thly, Suppofing the cruife to be the thing in- 
 fured, it is neither averred in the declaration, 
 nor found by the verdict, that Peter Joyce had 
 an intereft in the cruife, but only that he had 
 an intereft in t\].tjhip. 
 
 The Court of King's Bench gave judgment 
 for the plaintiff; upon which a writ of error was 
 brought in the Exchequer Chamber \ and after 
 twice arguing the cafe, the judgment was una- 
 nimoufly reverfed. The plaintiff brought his 
 appeal in the Houfe of Peers ; but the Houfe of 
 Peers affirmed the fentence of the Exchequer 
 Chamber.— 5. Brown* s Par. Cafes. — 131. 
 
 Since
 
 328 Nature of an Insurance Contract. 
 
 Since this decifion, in every cafe where infu- 
 ranee on privateers is made/r^^ of average, it is 
 underftood, that nothing can be recovered, un- 
 lefs the fliip be taken, or totally wrecked or loft, 
 or adjudged irreparable, i, e, not fea-worthy, or 
 not worth the expence of repairs. 
 
 Hitherto of privateers infured ^'-free of ave- 
 rage.'''' But of late it has become ufual, at leaft 
 in Scotland, and it is believed likewife in Eng- 
 land, to infure them on a common policy, ex- 
 preffing, in the defcription, that the velTel is a 
 private fhip of war, with liberty to cruife againft 
 the enemy. And this laft expreiTion is the chief 
 peculiarity in thofe infurances. 
 
 In this cafe every kind of damage is provided 
 againft ; and the lofs is never reckoned total, 
 unlefs the fliip be adjudged not fea-worthy, or 
 not worthy of the expence of repairs. In fhort, a 
 privateer is in the fame fituation vi^ith any other 
 velTel infured by a policy upon intereft. 
 
 It is obvious, that the infurance ** intereft or 
 ** no intereft,'* which has, at a former period, 
 given rife to fo many intricate cafes, is a very 
 improper one, and that it affords much tempta- 
 tion to fraudulent lofles. It has been confined 
 by the Legiflature to privateers only. But there 
 is room to hope, that, even with regard to them, 
 it will, in a fliort time, from the inconveniencies 
 attending it, be entirely laid afide. 
 
 Art.
 
 Of Partial Loss. 329 
 
 Art. II. Of partial Lofs, and its Effedls. 
 
 The effect of a total lofs is, as has been ftated, 
 to put it in the option of the aifured, whether 
 he ftiall perfevere in the adventure, or abandon 
 the fftip and cargo to the underwriters, and fue 
 them for the whole amount of their fubfcrip- 
 tions, fo far as thefe do not exceed the intereft. 
 A partial lofs is attended with no fuch confe- 
 quences. In this cafe the aifured is bound, with 
 induftry and attention, to perfiil in the voyage ; 
 and he is entitled to claim indemrfification of 
 the fpecial damage only, which has actually been 
 fuftained. 
 
 What conllitutes a partial lofsy is not a mat- 
 ter of any doubt; but in what cafes the in-, 
 furer fhall be fubjeded to it. And this depends 
 not only on the ftate of obligation between the 
 aifured and underwriter, but upon the mutual 
 relations fubfifting between the different part- 
 owners of fhip and cargo, who are interefted 
 in the prefervation of one common fubjed:, 
 and in the promotion of a joint adventure. On 
 fome occafions, every individual owner muft 
 bear the damage incident to his own property. 
 In other inflances, equity points out that the lofs 
 fuftained by individuals ought to be repaired by 
 a general contribution of all concerned. In the 
 former cafe there is nothing lingular. But, in 
 
 T t the
 
 33© Nature of an Insurance Contract. 
 
 the latter, the circumllances which give rife to 
 fuch a contribution, — the lituations in which it 
 takes place, — and the principles by which it is re- 
 gulated, open a very curious and important field 
 of enquiry. The regulations and pradice with 
 regard to this fubjed, form accordingly a very 
 confiderable branch of the law of mercantile na- 
 tions. 
 
 This enquiry, it is true, does not ftridiT 
 ly belong to infurance. It is an inveftiga- 
 tion with regard to the obligations between 
 joint owners, or thofe who are concerned in a 
 common adventure ; and affedls the infurers in 
 a confequential manner only, fo far as they may 
 have undertaken to indemnify this or that par- 
 ticular proprietor, who may be fubjedled to, or 
 relieved by a contribution. The whole obferva- 
 tions that occur, however, upon the branch of 
 the fubjed now under confideration, depend fo 
 much on the dodrine of contribution, or ave- 
 rage, that it here becomes neceflary, however 
 digreffive it may appear, to examine the princi- 
 ples and rules which regulate the diftribution of 
 partial lofs among the different parties concern- 
 ed in one common adventure. 
 
 Digres-
 
 Of Partial Loss. — Average, 331 
 
 * * * * # 
 
 Digression, concerning Average ; or the Bivu 
 Jion of partial Lofs among the different parties 
 concerned in a common adventure. 
 
 I. The laws of fociety do not, in general, at- 
 tempt to corred: the inequalities of accidental 
 lituation. The ruinous lofs, which one man 
 has incurred, may be the fubjed of pity and 
 fympathy ; and the fuccefs of another, when 
 difproportioned to the exertions which have 
 produced it, may excite difcontent ; but the pu- 
 blic will not conlider itfelf as entitled to inter- 
 fere ; or, by relloring them to the level of their 
 different merits, to remedy the caprice or in- 
 juilice of fortune. But this obfervation does 
 not hold univerfally. There are certain cafes 
 in which the feelings of mankind are interefled 
 to afford not only pity and fympathy, but redrefs 
 to the fufferer ; and in which the judge is difpo- 
 fed to reduce parties to their proper equality of 
 fituation. This happens wherever, from miftake, 
 or by accident, the lofs of one 7?ian has been con- 
 verted to the gain of another. The great equi- 
 table maxim of the Civil law is, *' Nemo debet 
 " locupletari aliena jaSiura, — No perfon fhould be 
 " allowed to reap advantage by another's lofs*.'* 
 
 The operation of this principle may be exem- 
 plified in a variety of lituations which are daily 
 
 calling 
 
 * Karnes' Pr. Equity.
 
 3"32 Nature of an Insurance Contract. 
 
 calling for the intervention of courts of equity. 
 Thus, where a perfon pofleffing a boufe or lands 
 bona fide, lays out money in the reparation or 
 melioration of the fubjedl, which is afterwards 
 recovered by the true proprietor ; — the latter is 
 bound to indemnify the bona fide pofTeiTor for his 
 improvements ; otherwife he fhould be benefited 
 by the other's lofs. 
 
 In order to found a claim of reftitution, how- 
 ever, to the fuffering party, two circumftances 
 are necefiary ; — that his lofs has been diredily 
 converted to the other* s gain ; — and that this gain 
 admits of a precife ejlimate. It is not every lofs 
 upon one part, produdive of confequential ad- 
 vantage to others, that can be the foundation of 
 an equitable claim of this nature. The lofs of 
 one man's goods by fhipwreck, increafes the de- 
 mand for thofe of his neighbour, and enhances 
 their market value ; yet the fufferer has no claim 
 for indemnity. The connexion between the lofs 
 and gain is not fufficiently immediate ; the one is 
 too remote a confequence of the other ; and the 
 amount of advantage which the damage may 
 have occalioned, cannot be afcertained with fuffi- 
 cient accuracy. 
 
 Unlefs there be an aEiual fubfifiing gain upon 
 the one hand, as well as a lofs upon the other, 
 there can be no room for rejiitution. Where, 
 therefore, one man's money has been diredly 
 converted to another's emolument, but the ad- 
 vantage has, before aftion brought, been inter- 
 cepted
 
 Of Partial Loss. — Average, 333 
 
 cepted by accident, the fufTering party cannot 
 recover upon the maxim above Hated. Altho* 
 the one is a lofer, the other is not enriched ; and 
 to fuftain adlion, would be only transferring, 
 not removing the fituation of hardfhip. 
 
 2. But there is another principle upon which 
 one man who has aded ufefully for another, 
 and has thereby incurred a lofs, is entitled to 
 indemnification, although the benefit intended 
 ihould be afterwards intercepted by accident. 
 Every man who adls ufefully, with a view to the 
 advajitage of another y and with the view of re- 
 muneration, has a right to a recompence for his 
 labour befi:owed, and expence incurred. 
 
 Thus, where a man's houfe is in danger of fal- 
 ling or becoming ruinous, and, in his abfence, his 
 neighbour interferes, and incurs expence in re- 
 pairing or fupporting it ; the perfon who has adt- 
 ed in this friendly manner, is entitled to indem- 
 nification for his expence and his labour, altho', 
 before the owner could reap any benefit by it, 
 the houfe Ihould be demolifhed by fire or earth- 
 quake. 
 
 The fame holds in every cafe where one per- 
 fon acts properly as a negotiorum gejlor for ano- 
 ther. Here a man takes upon himfelf the office 
 of a fador, though without an exprefs commif- 
 fion, in a cafe where there is no opportunity of 
 applying for that commiflion ; and, if there were, 
 where nobody in his fenfes would refufe to grant 
 it. He tnifts, that the perfon for whom he ads 
 
 will
 
 334 Nature of an Insurance Contract. 
 
 will not refufe that remuneration, or recompence, 
 which, if he could have been applied to, he cer- 
 tainly would have promifed. 
 
 3. To one or other of the principles now 
 mentioned, all thofe cafes may be reduced, in 
 which the owners of fhip, or of cargo, are not 
 fingly fubjedted to the damage fuflained by their 
 own property, but in which the lofs of indivi- 
 duals mull be made up by a rateable contribu- 
 tion of their fellow-adventurers. Such a diftri- 
 bution of lofs is, in mercantile language, denomi- 
 nated average, and the fituation which admits 
 of it, an average lofs *. 
 
 The great and leading illullration of average 
 lofs, occurs in the cafe Q>i 2i jeUifon. When, in a 
 ftorm, a part of the goods are thrown overboard, 
 to fave the fhip, or the reft of the cargo, the pro- 
 prietors of the fubjed preferved muft contribute 
 to make up the lofs. The one fet are gainers 
 by the prefervation of their property, which, but 
 for the jettifon, would, in all probability, have 
 gone to the bottom. Equity therefore feems to 
 require, that when two parties are fo intimately 
 connected in a common adventure, the one fhould 
 not be allowed to derive a gain from the other's 
 
 misfortune. 
 
 The 
 
 * The Englifh word Half correfponds to a word of a fi- 
 milar found in all the Teutonic languages, pronounced with 
 the / mute. (See John/on^ s Diiiionary.) Hence the word 
 Halvers, partners, (q. Halfers,) and Halverage, partner, 
 (hip. — Halverage, or Average Loss, therefore, means a 
 partnerjh'ip lofs.
 
 Of Partial Loss. — Average. 335 
 
 The application of the principle in this jn- 
 ftance was very well underftood in ancient times ; 
 and the regulations of Rhodes with regard to it, 
 were adopted into the Roman law, and make a 
 diflinguiflied figure in Jujl'niian^s compilations. 
 
 " By the law of Rhodes it was provided, that if, 
 " to lighten a Ihip, a jettifon is made, that which 
 ** is thrown away for the general fafety, fliall 
 " be refunded by a general contribution." /. i. 
 Dig. ad Leg. Rhod, 
 
 On the other hand, where thofe principles 
 above ftated, are not applicable, no contribution 
 takes place ; where the lofs, upon one fide, is not 
 diredly converted to the gain of the other party, 
 there can be no claim of rejlitution ; and where 
 the expence or trouble has not been incurred ufc- 
 fuUy, with a view to another's benefit, and in the 
 expectation of remuneration from him, there can 
 be no title to a recompence. 
 
 " If, in order to lighten the fliip, a part of the 
 " goods are unloaded into a boat, and arc there- 
 " by loft, while the fhip is preferved ; — the value 
 " of the goods in the boat fhall be refunded by 
 " contribution. On the other hand, if the boat. 
 •* is preferved, and the ihip loft, the goods in the 
 " boat fliall not contribute : For, in the former 
 ** cafe, the goods were hazarded in the boat, in 
 " order to fave the fliip ; but in the latter cafe, 
 ** th^ lofs of the ftiip had no effed upon the fa- 
 ** ving of the boat*." 
 
 Cafe. 
 
 '^ Ad Leg. Rhod. I. 4. Foreign Orel, pqjjim.
 
 33^ Nature of an Insurance Contract. ^ 
 
 Cafe. — The plaintiff being one of the owners 
 of a fhip, loaded on board her 210 tons of oil, 
 and the defendant, 80 bales of lilk, upon freight. 
 The fhip was purfued by enemies, and forced in- 
 to a harbour, and the mafter ordered the filk on 
 Ihore, being the mofl valuable commodity, (tho' 
 they lay under the oils, and it required a great 
 deal of time to get at them.) The fhip and oils 
 were afterwards taken, and the owner of the 
 oils brought his bill to have contribution from 
 the owner of the filks ; and although it was ad- 
 mitted, that if goods were thrown overboard, in 
 flrefs of weather, or in danger, or juft fear of 
 enemies, in order to fave the fhip and the reft of 
 the cargo, that which is faved fhall contribute 
 to a reparation of that which is loft ; and the 
 owners of the fhip fhall contribute in proportion ; 
 yet, in this cafe, the lofs of the oils did not fave 
 the filks •, neither did the faving the filks lofe the 
 oils; and the bill was difmilTed accordingly; 
 which Avas confirmed in the Houfe of Peers. 
 Shower, P. C, i8. 19. *. 
 
 The fame holds, if a part of the fhip has been 
 cut away, and thrown overboard with a view to 
 the prefervation o^ the cargo. " If the maft is 
 " cut, that the fhip with the cargo, may be free 
 
 '* from 
 
 * This judgment may perhaps be objecfled to, upon the 
 ground, that the mafter had loft the oils by a partial atten- 
 tion to fave the filks. But, in all probability, the oils were 
 too bulky to be carried afhore j therefore, " the faving of 
 *' the filks did not lofe the oils."
 
 k Of Partial hoss.-^Avera^e. 337 
 
 *' from danger, the principle of contribution fliall 
 " operate." L. 5. § i. ^J- tit. j I. 2. ej. tit. 
 
 But jetfon is not the only cafe in which there 
 is room for a contribution. Whenever one party 
 incurs a lofs, which is diredlly produ6tive of ano- 
 ther's gain, or where labour and expence is ufe- 
 fuUy incurred, with a view to another's advan- 
 tage, and from the profpect of remuneration, the 
 fame rule holds. 
 
 " Ifj to avoid or efcape an enemy," fays Ma- 
 
 gensy *• a (hip anchors in an open road, under 
 
 ** the protedlion of fome caftle, and there parts 
 
 ** her cable, it undoubtedly ought to be conlider- 
 
 " ed as a grofs average." 
 
 At the fame time, the furniture and appurte- 
 nances of a fhip are fuppofed to be fufficient to 
 Hand out againft the ordinary run of accident 
 at fea -, and if, from a failure in this refpeft, or from 
 the mere violence of a ftorm, the fhip fuffers da- 
 mage in her hards and rigging, — or from the fault 
 of any party concerned ; — fuch damage having 
 been incurred v/ith no view to the prefervation of 
 the reft of the concern, will fall upon the indivi- 
 dual proprietor *. 
 
 In the fame manner, where a lofs is incurred by 
 advance of money to ranfom a fhip or cargo. " If 
 " a fhip is ra?ifomed ^lom pirates, ServiuSy OJiliuSy 
 *' Labeo, all think that contribution is due. But 
 *' what a robber carries away is loft to the pro- 
 
 U u " prietor ; 
 
 * See Magens pajf. I. Si faber incudem. ff. ad Leg. Rbod. 
 Ord. Spain. No. 80. Of Antwerp, No. 27.
 
 33^ Nature of an Insurance Contract. 
 
 ^^ prietor ; nor is contribution due to him who 
 " ranfoms merely his own property." L. 2. § 3. 
 D. ad Leg. Rhod, 
 
 Holt, C, J, faid, " That it feemed juft and 
 " reafonable, that the owners of goods ranfomed, 
 ** ought to pay the redemption. If a pirate 
 " fliould take the fhip and goods, and the mailer 
 " redeem them, the owners fhall make him fa- 
 " tisfaclion ; and much more when taken by an 
 " enemy." In the cafe, Tranter v. Watfon^ Ray^ 
 mond, 931. 
 
 " If a pirate takes part of the goods tofavetbe 
 " reft, contribution is due.** SirF, Moore, foL 297, 
 Hicks V. Pilkington*. 
 
 The fame thing ought to hold as to the re- 
 demption of a ranfomer, who has bound himfelf 
 as an hoftage for the ranfom of Ihip and cargo. 
 
 A fimilar rule muft undoubtedly be enforced, 
 where a ftilvage has been paid in confequence of 
 a capture and recapture. The cafes are perhaps 
 few, in which zfalvage incurred for the recovery 
 of goods from Jhipwreck, can be for the benefit 
 of the adventure at large ; or, indeed, of any o- 
 ther perfon than the individual proprietor of the 
 efFefts faved. Yet, in any fuch inftances, there 
 can be no doubt that the fame equitable princi- 
 ples are applicable ; and that all thofe who have 
 reaped an advantage by the falvage paid, or to 
 whofe benefit, with the view to a recompence, 
 
 it 
 
 * Or J, ofBilboa, § 9.
 
 Of Partial Loss. — Average, 339 
 
 it was diredled, mufl be liable in contribution 
 accordingly. 
 
 Another inflance may fometimes occur, in 
 what is called demurrage ; where, in confequence 
 oi feizurey detention^ embargo^ extraordinary ex- 
 pence of mens vidualling and wages has been 
 incurred ; and this appears to have been done 
 for the general emolument. Such expences, 
 however, are in moft cafes underllood to be for 
 the fole benefit of the Ihip-owner. 
 
 It feems unneceffary to multiply examples up- 
 on a point fo clear. In confulting the foreign 
 ordinances, cafes may be found in which the 
 principles may be mifapplied ; but no difpute 
 can arife with regard to the principles them- 
 felves. And it feems to be fully underllood, a- 
 mong all mercantile nations, that the rule of 
 law, which enforces average-conXxWiXxiioTis, fhall 
 be equally comprehenfive with the general max- 
 ims of equity on which it is founded. 
 
 4. It fhould feem, in moft cafes of partial lofs, 
 that both the principles above mentioned concur 
 in founding a contribution. If the lofs of one is 
 productive of actual advantage to the reft, they 
 are liable to him in rcjlitution, becaufe they have 
 reaped a gain. If that gain has been intercepted 
 by fubfequent accident, they are liable in a re~ 
 compence, becaufe their advantage was the objed; 
 and view of their neighbour's expencc or labour, 
 and he had trufted to them for indemnification. 
 Thus, in cafes of ranfom, oi falvage^ and of de- 
 vmrragey the labour employed, and expencc in- 
 curred
 
 34^ Nature of an Insurance Contracto 
 
 curved, with a view to the benefit of others, founds 
 a claim to the lofing party, although the Ihip 
 fhould be wrecked at any future ftag€ of the ad- 
 venture, or the owners prevented in any other 
 manner from reaping the advantage intended. 
 
 But there is one, and that the moll important 
 fource of contribution, in which no indemnifi- 
 cation takes place, unlefs a gain be adually reap- 
 ed. — In cafes of jetfon, no contribution is due in 
 order to make up the lofs of him whofe goods 
 have been thrown overboard, unlefs the fhip be 
 actually faved *. 
 
 One reafon of this feems to be, that the owner 
 of goods made ufe of in 2.jetfon, really abandons 
 nothing, except what, independent ofthe jetfon, 
 he would have loft at any rate. If the fhip be 
 loft notwithftanding the jetfon, the other parties 
 not only reap no advantage, but he incurs no lofs 
 by the jetfon. It is only where the fhip is faved 
 that he can be faid to fuftain a lofs comparatively 
 with the other proprietors of goods. But the 
 ranfomer rilks a feparate fum of money, totally 
 diftin6t from his intereft in the adventure ; and 
 if that fum be not refunded, he incurs a lofsj 
 whatever comes of the velfel. 
 
 There is another, however, and perhaps a more 
 important reafon of this difference ; a reafon 
 which goes fo far as to fhow that, in cafes of jetfon, 
 it is the principle of rejlitution folely that ope- 
 rates, and not the principle of recompence ; and 
 confequently, that it is not only neceflary there 
 
 fhould 
 
 * See Voet ad I. Rhod. \ 15= Lex Mercat, Rediv. 1^6. Fo- 
 reign ord. pftjjim.
 
 Of Partial Loss. -^Average. 341 
 
 Ihould be a lofs incurred on the one fide, but an 
 actual gain refulting from it on the other. 
 
 From the circumftances already ftated with 
 regard to thefe two principles of rejlitution and 
 recompence^ it is obvious that the latter of thefe, 
 which is produdive of obligation upon men, al- 
 though they are not actual gainers, is much lefs 
 extenfive than the other. It proceeds upon the 
 idea that one man ads with the view to another'' s 
 advantage ; from which circumftance he is en- 
 titled to trull for remuneration to the gratitude 
 of him whofe benefit was in view. In cafe 
 of ranfom and falvage, it was obferved, the 
 ranfomer expofes to rilk a feparate fubjecl, 
 totally difl;indt from his fhare in the adventure. 
 In cafes of jetfon, he merely abandons what he 
 muft have loft at any rate. But befides this, he 
 feems, in the former cafe, to intend the advan- 
 tage of others ; in the latter, his own benefit 
 merely. The ranfomer, who expofes a fum of 
 money to hazard, in order to recover the goods 
 of others, might have avoided that rifk, by ran- 
 foming merely his own property. And fo far he 
 exerts himfelf as a faElor for others, and is en- 
 titled to truft to them for remuneration. But 
 in a ftorm, no man can feparate his own proper- 
 ty from that of others, or avoid his fingle Ihare 
 of the common danger. He throws his goods 
 overboard, therefore, with the elTed perhaps, 
 ultimately, of faving the whole fhip, but with 
 the immediate viev/ of benefiting himfelf. He 
 
 has
 
 342 Nature of an Insurance Contract. 
 
 has no title to be confidered as 2L&.ingfa6iorio no- 
 miney from any confequential advantage that 
 might have followed to others ; and his only 
 claim for indemnification arifes from the circum- 
 flance, that his lofs is produdive of an ailualgain 
 to his co-adventurers, 
 
 The influence of thefe reafonings appears in 
 fome queftions afterwards to be ftated upon the 
 fubjedt of jettifon. The general point, that, in 
 cafes of jetfon, no contribution is due unlefs it 
 be the means of faving the Ihip from the im- 
 pending danger, is too trite to require illuftra- 
 tion *. 
 
 5. From the principles above ftated, it may be 
 eafy to form a judgment of the manner in which 
 a partial lofs muft be diftributed among the dif- 
 ferent parties concerned in a common adven- 
 ture, according to the extent in which they have 
 been enriched, or in which their benefit has been 
 intended by it. 
 
 Contribution, or average, is accordingly of 
 two kinds •, general and particular. 
 
 General average is that contribution which 
 takes place on occafion of damage incurred for 
 the general intereft of the adventure at large ; 
 and it is borne by the proprietors of both fhip 
 and cargo, according to the proportional value 
 of each. Particular average is the contribution 
 for lofles which have had a refpedl to the advan- 
 tage 
 
 * See Dig* ad L, Rhod. For, Ordm. pajfim.
 
 Partial ILoss.^^Avera^e* 343 
 
 tage of the fhip alone, or cargo alone ; and it falls 
 upon the one or other fingly *, 
 
 Of general average, an example occurs, where 
 a fhip and cargo has been ra?ifo?fied from an 
 enemy. In the fame manner, where a veflel has 
 been taken and recovered, the falvage due to 
 the recaptors being an expence incurred for the 
 general benefit, muft be refunded by a general 
 contribution. 
 
 But the lituation which affords the moil illu» 
 ftrious examples of the operation of equitable 
 principles, is where 2l jetfon has taken place. In 
 the exigency of a ftorm, purfuit by an enemy, 
 and, in a variety of lituations which may be fi. 
 gured, it muft often become expedient that a 
 part of the property fliould be thrown over- 
 board, or otherwife expofed to additional dan- 
 ger, in order to fave the reft. In thefe cafes, 
 if the veffel be faved, the proprietors of the 
 
 whole 
 
 • * There is another fort of claim which owners of fhip 
 have againft the proprietors of cargo, that likewiie goes by 
 the name of average, tliough without much propriety : I 
 mean a claim for pilotage and port charges, which is called 
 fmall or petty average. Ti)is is not properly an equitable 
 contribution in cafe of kfs from the accidents of the voy- 
 age, but a matter of pofitive agreement between the owner 
 and fhipper, and entirely arbitrary. The fhipper becomes 
 liable for primage and overage accujlornedj it is an article of 
 the bargain of affreightment. With this petty average the 
 infurer has no concern. 
 
 Iti {:>r'i<^ice, one third of thefe expenccs of pilotage and 
 port charjif3> ffclls on the ftiip, and two thirds uu \he 
 cargo.
 
 344 Nature of an Insurance Contract. 
 
 whole goods favedj and of the fhip herfelf, ought 
 to contribute to indemnify the fufFerer, propor- 
 tionally to the value of their refpedtive proper- 
 ties ; for in that proportion they derive a diredt 
 pecuniary benefit from the jettifon *. 
 
 Lord Kames, in his Principles of Equity^ has a- 
 dopted an idea that, in cafes oijetfon, goods ought 
 to contribute, not according to their value, but 
 their ^weight. He obferves, that it is the heavy 
 goods which occafion the danger; and if there 
 were leifure for fuch a tranfadion, every owner 
 of valuable goods would purchafe an equal quan- 
 tity of thofe that were heavy, and each would 
 throw the fame number of pounds weight over- 
 board. Proceeding upon the fame reafoning, 
 
 " the 
 
 * '^ Cum in eadem nave, varia mercium genera complures 
 " mercatores coegiflent, praetereaque multi ve6lores, fervi, 
 " liberique, in ea navlgarent, tempeftate gravi orta, necef- 
 •' fario jaftura fada erat. Qujefita deinde funt haec : An 
 '* omnes ja6luram praeftare oporteat, et fi qui tales merces 
 '* impofuifTent, quibus navis non oneraretur, velut gemmas, 
 " margarltas ? et quae portio praeftanda eft ? et an etiam pro 
 " liberis capitibus dari oporteat ? Placuit, omnes quorum in- 
 " terfuijfet jaBuramJieri, conferre eportere, quia -tributum ob- 
 " fervatae res deberent : itaque dominmn etiam navis pro 
 " portione obligatum efle. Jafturae fummam pro rerum 
 **■ pretio diftribui oportere ; corporum liberorum aeftimationem 
 <* nullam fieri pofTe j itidem agitatum eft, an etiam veftimen- 
 *' torum cujufque, et annulorum, aeftimationem fieri oporte- 
 " at ? Et omnium vilum eft, nifi fi quae confumendi caufa im- 
 " pofita forent : quo in numero eflent cibaria, eo magis, 
 " quoad, fi quando ea defecerint in navigatione, quod quif- 
 " que haberet in commune conferret." Z/.a. §2. Z>. Ad 
 leg, Rhod,
 
 Partial Loss. — Average. 345 
 
 " the Roman law," fays he, " appears uncouth 
 " in fomc of its confequences ; jewels, and I may 
 " add bank bills, are made to contribute to 
 " make up the lofs, although they contribute 
 " not in any degree to the diilrefs ; nor is a 
 " fingle ounce thrown overboard upon their ac- 
 " count ; nay, the fliip itfelf is made to contri- 
 " bute, though the jetfon is made neceffary, not 
 " by the weight of the lliip, but of the cargo." 
 
 The whole of this reafoning is founded on a 
 fuppolition which has been already fhown to be 
 erroneous ; that in jet/jn, as in other cafes of 
 partial lofs, the obligation to contribute arifes 
 from the principle, that benefit was intended, 
 and that a recompence is due, whether any ad- 
 vantage is aBually reaped or not. Upon this rea- 
 foning, it no doubt follows, that every commo- 
 dity fliould contribute, not according to value, 
 but weight ; becaufe it is according to their 
 weight, that they increafe the danger ; and that 
 the Ihip, for the fame reafon, ought to be ex- 
 empted. 
 
 But in cafes of jetfon, the contribution does 
 not arife from any idea that the lofing party is 
 entitled to a recompence, for having ixdLcdfac- 
 torio nojuine \ but merely that he may claim re- 
 Jlitution, fo far as his lofs lias been diredly con- 
 verted to another's gain. Upon Lord Kames' 
 fuppofition, many abfurdities would follow. Put 
 the cafe, that a valuable jewel is thrown away 
 in the hurry, and is to be contributed for by 
 
 X X weight.
 
 346 Nature of an Insurance Contract, 
 
 weight. The reft of the cargo confifts of a 
 L. 1000 bill of exchange, having no fenfible 
 weight, and fome Cwts. of coals, the whole of 
 which, taken together, are not worth the lofs 
 incurred. If goods are to contribute by weight, 
 the bill of exchange will contribute nothing. 
 The coals may be all given towards the lofs, 
 without fenfibly indemnifying the owner of the 
 jewel. Here the holder of the bill will be the 
 only gainer ; the proprietor of the jewel will lofe 
 a part ; and the owners of the coals will lofe their 
 all. Would this be an equitable diftribution ? 
 Or can we prefume, that the owners of bulky 
 commodities would ever confent to any jetfon 
 upon fuch terms ? 
 
 The modern nations of Europe, accordingly, 
 have, in this refped, almoft unanimoully adhe- 
 red to the principle of the civil law. The fliip 
 contributes as well as the goods ; and both ac- 
 cording to their value : and money and jewels 
 are underftood, with very few exceptions, to be 
 liable, as well as the heavieft and moft bulky 
 commodities. 
 
 In every cafe o? general average, the owners 
 of :(hip ought to contribute, not only for the 
 hull of the veiTel, her tackle and appurtenances, 
 but in refpect of the nett freight. The nett 
 freight will be a clear gain to them, if the fhip 
 accompliihes her voyage. By the ordinance of 
 Hamburgh J accordingly, it is declared, that " the 
 
 " owners
 
 Partial Loss. — Average, 347 
 
 ** owners of fhip fhall contribute for the whole 
 ** amount of both 7^//) and freight * .^'' 
 
 The following Scotch cafe, (dated by Lord 
 Karnes), does not coincide with thefe princi- 
 ples, as it feems to imply, that the ihip-owner 
 fhall not contribute io^ freight at all. 
 
 LuTwiTCH contra Gray. 
 
 In a (hipwreck, part of the cargo being fifhed 
 out of the fea, and faved, was delivered to the 
 owners for payment of the falvage. The pro- 
 prietor of the ftiip claimed the freight of the 
 goods faved pro rata itineris. The freighters ad- 
 mitted the claim, but infifted, that as the fal- 
 vage was beneficial to him, on account of his 
 freight, as well as to them on account of their 
 goods, he ought to pay a proportion of the fal- 
 vage. His anfwer was fuftained to free him 
 from any part, viz. that the expence was whol- 
 ly laid out on recovering the freighters goods ; 
 and therefore that they ought to be liable. Jan. 
 
 18. 1755- 
 
 Upon this cafe, his Lordfliip obferves, that it 
 feems to have proceeded on the erroneous idea, 
 that no contribution was due, unlefs the fuffcrer 
 had acled faElorio nomiiie. Whereas here a mucli 
 more powerful principle operates, that the fhip- 
 owners had reaped a pecuniary benefit at the ex- 
 pence 
 
 * OtA. o{ Coningjb. 885 Of Copenhagen, No. 1284. 
 
 — Oi Genoa, 137, — Pradice oi Britain. — OrA. oi IIar?ib. 
 No. 981.
 
 34§ Nature of an Insurance Contract, 
 
 pence of others ; and it was therefore immate- 
 rial, whether that benefit was intended or not. 
 
 There are fome exceptions to this rule, that 
 ihip and freight ought to contribute to the full ; 
 but thefe are not numerous. 
 
 The ordinance of France (No. 579.) fays, that 
 both fliip and freight are to contribute for one 
 half. The Antwerp regulation provides, that 
 the owners of the cargo Ihall have an option to 
 make the fhip contribute, either according to 
 her real value, or her whole contra6led freight. 
 Thefe regulations feem applicable to grofs 
 freight, which includes a conlideration for the 
 outfit ; but they are, furely, in a conliderable 
 degree imperfect. 
 
 Not only ought the fliip and cargo to contri- 
 bute, but all who have an afcertainable intereft 
 in their prefervation. 
 
 A lender on bottomry, it fhould feem, is in 
 the precife fituation of a fliip-owner. The ex- 
 tent of his interefl in the hull of the fhip, dimi- 
 niflies fo far that of the borrowers. He ought, 
 therefore, like the other owners of ihip, to con- 
 tribute towards a ranfom, jetfon, or other com- 
 mon difafter. In Spain, accordingly, where the 
 great expence of fitting out a lliip to the Spanifh 
 polonies, renders bottomry a very frequent con- 
 trad:, and where, confequently, it is better un- 
 dcrllood than in mod other countries, a bottom- 
 ry-bond contains this condition, that the lender 
 
 fhall
 
 Partial Loss. — Anjerage. 349 
 
 fhall run, in partnerlliip with the owner, the 
 rilk on the hull, keel, and earnings of the fliip. 
 The French ordinance fays, that thofe who 
 lend money on bottomry, fhall bear their pro- 
 portion of all grofs or general averages, but not 
 of fimple or particular averages, without an ex- 
 prefs agreement to that effed. Ord. Fr. No. 
 660. 
 
 From Mr Magen's Eflay, it appears, that the 
 rule upon this point, in feveral other European 
 ftates; is far from being laid down with preci- 
 fion ; and it does not appear to be always con- 
 fillent with principles. In England there are, 
 it is believed, no fixed rules univerfally efta- 
 blifhed, for fettling partial lofles on a bot- 
 tomry-intereft. 
 
 The owner himfelf of the goods thrown over- 
 board, muil contribute his own fhare, in propor- 
 tion to the extent of his property on board : For 
 as he is indemnified by the contributions of his 
 fellow-adventurers, the jetfon is beneficial to 
 him, as well as to the reft. 
 
 In fhort, every perfon, for whofe benefit ex- 
 pence or trouble has been ufefully incurred, with 
 a view to indemnification, is liable in a reco?n- 
 pence for fuch expence and labour : and every 
 perfon who has diredly reaped an adual pecu- 
 niary advantage from another's lols, is liable in 
 rejlitution, whether his advantage was intended 
 or not. 
 
 There
 
 350 Nature of an Insurance Contract. 
 
 There are a few exceptions, both by the civil 
 law, and the pradice of modern Europe. Sailors 
 are excufed in refpedt of their wages ; partly from 
 humanity, it being thought hard to deprive 
 them of any part of their fmall earnings ; and 
 partly from utility, that they may be induced, 
 with lefs relu6lance, to confent to 2ijetfon. 
 
 The Roman law excepted paflengers, in re- 
 fped of their lives faved by the jetfon ; becaufe 
 the life of a freed man does not admit of a pecu- 
 niary eilimation. A limilar rule is adopted in 
 modern Europe. Paflengers are, belides, free 
 from contribution, for the ufual articles of mo- 
 ney, jewels, and neceflaries, which may be con- 
 lidered as appendages to their perfon. Mol- 
 LOY fays, that, "in general, money, and jewels, 
 and even clothes, and all things in the fhip, (ex- 
 cept a man's apparel in ufe, or viduals put on 
 board to be fpent), are liable to average and 
 contribution." It is believed, however, to be 
 a general rule with regard to fuch fubjeds, that 
 what pays no freight, pays no average. 
 
 In eftimating the intereil on board, in order to 
 contribution, a queftion may arife, whether re- 
 gard is due to the value of fhip and goods at the 
 iiort of loading, or that of difcharge. The Ro- 
 man law adopted a diflindlion fomewhat meta- 
 phylical upon this fubjedl. The goods loft were 
 to be eftimated at their original coft ; thofe fa- 
 ved, were valued at the price which they might 
 probably bring ; becaufe, in the former cafe, 
 
 the
 
 Partial lAOss.-^Average, 35 x 
 
 the prime coft afcertains the adlual hfs of the 
 goods thrown overboard ; and attention to the 
 market-rate, at the port of difcharge, is necelTa- 
 rj to determine the extent of aStual profit that 
 fhall accrue from that lofs. 
 
 The point feems to be in fome meafure arbi- 
 trary. It appears more reafonable, however, 
 that the lofs and gain fhould both be judged of 
 by the fame criterion ; and none of the modern 
 Hates have therefore followed the rule of the ci- 
 vil law, although they differ very much from 
 one another upon the point. 
 
 By fome regulations, the whole goods are efti- 
 mated at their prime coft, or values in the port of 
 difcharge, according as the veffel has, at the 
 time of the lofs, executed half her voyage or 
 not. This diftindion prevails in the Confolato 
 del mare^ and in feveral foreign ordinances ; 
 thofe in particular of Genoa, of Rotterdam, of 
 Stockholm, and of Copenhagen. It appears 
 likewife, from Gerard Malynes, to have been the 
 old rule in England. 
 
 The greateft number of modern mercantile 
 ftates, however, have been of opinion, that the 
 whole goods, loft and faved, ought to be eftimated 
 according to their value in the port of difcharge. 
 This is the rule adopted by the Hamburgh ordi- 
 nances ; by thofe of Coningft3erg, Antwerp, and 
 France ; by the Spanifli Weft Indian laws, and 
 by the general practice of Britain. 
 
 * 'IF "fC- , 'tP * 
 
 It
 
 352 Nature of an Insurance ContracTo 
 
 It remains to be confidered, how far, in what 
 cafes, and in what proportions, the underwriter 
 is liable for that lofs, which may fall upon the 
 particular proprietor whom he has infured. 
 
 In total lofTes, this queftion was very fimple. 
 In a wager policy, where a total lofs is incurred, 
 the underwriter is liable to the extent of the bett. 
 In open policies upon interejl, the infurer is liable 
 for his whole fubfcription, fo far as it can be 
 fhown there was interell on board. And in va- 
 lued policies ^ he is liable for the prime colt, as af- 
 certained by the valuation. 
 
 But in cafes of partial lofs, the point is attend- 
 ed with a good deal of intricacy. 
 
 1. In wager policies^ in the Jirjl place, there 
 can be no partial lofs. For a partial lofs is too 
 indefinite, and admits of too great variety in 
 kind, and in degree, to be laid hold of as the 
 condition of a wager. Still lefs can there be 
 room for that particular fpecies of partial lofs 
 which is repaired by contribution, and goes un- 
 der the name of average ; becaufe the affured, 
 having no intereft, can fhew no real lofs. In 
 thefe wager policies, therefore, the underwriter 
 can, from the nature of the thing, have no con- 
 nection with any damage that is not total. 
 
 2. In the fame lituation are many policies up- 
 on interejl, in which the affured exprefsly Iti- 
 pulates to hQfree of average altogether, or be- 
 low
 
 Partial Loss. 353 
 
 low a certain extent. When a policy is execu- 
 ted, free of all average whatever, the infurer is 
 liable for no damage, repairs, or charges, un- 
 lefs they are fo great, as to defeat the voyage, 
 and to entitle the allured to abandon. 
 
 A variety of claufes, ftipulating a partial free- 
 dom from average, have been adopted in diffe- 
 rent places, in order to avoid troublefome and 
 intricate proofs, in relation to damages of fmall 
 importance, upon commodities of a perifliable 
 nature. Thefe mull be varying every day, ac- 
 cording to the exigencies of trade. The ordi- 
 nance of Middleburg frees the infurer from all 
 average under one per cent. ; that of Amfterdam, 
 from all under three per cent. 
 
 At the foot of Englilh policies, there is com- 
 monly the following claufe, which has been of 
 very long Handing, 
 
 *' N.B. Corn, fifli, fait, fruit, flour, and feed, 
 " are warranted free from average, unlefs gene- 
 ** ral, or the Ihip be ftranded. — Sugar, tobacco, 
 ** hemp, flax, hides, and fldns, are warranted 
 *' free from average under 5 per cent. ; and all 
 " other goods, alfo the fliip and freight, are 
 *' warranted free from average under 3 per cent. 
 *' unlefs general, or the Jh'ip he ftranded.^'' 
 
 Both of thefe exceptions from the claufe, "■ free 
 ** of average," are founded in the reafon of the 
 thing. A general average takes place, where 
 a lofs has been incurred for the fake of tlie ad- 
 venture at large. It is an expence laid out for 
 the advantage of the whole concern, and confe- 
 
 Y y qucntly
 
 354 Nature of an Insurance Contract. 
 
 quently of the underwriters themfelves, and is in 
 a very different fituation from other partial loffes, 
 which are not the fubjeft of contribution. It 
 would be abfurd, that the infarers fhould ftipu- 
 late to be free from an expence incurred for 
 their advantage ; and it might be dangerous, by 
 inducing the aflured to avoid fuch expence, and 
 allow the lofs to become total. In the Mediterra- 
 nean y accordingly, where general claufes, " free 
 of average,*' are very common, without any ex- 
 ception, thefe claufes are cojijlrued not to extend 
 to the cafe o? jetfon *. 
 
 It might be dangerous, if the alTured himfelf 
 were liable for partial lofs in cafe oi Jlranding ; 
 for the fituation of the vefTel would afford a fuf- 
 ficient pretext for abandoning ; and the afTured 
 might be induced, inftead of incurring expence 
 at his own rifk, in recovering the fhip, fraudur 
 lently to allow the lofs to become total, in order 
 to recover the whole value from the infurers. — 
 It is extremely difficult, however, to decide what 
 fhall conflitutey2r^;z^i/zf. In one inflance, Can- 
 tillon V. L. AJf. Co. it is faid to have been found, 
 that a fiiip was Jlranded, becaufe, in falling 
 down the Thames, fhe had touched the bottom. 
 Since this determination, the infurance-compa- 
 nies in London have entirely laid afide the excep- 
 tion of the Ihip being ftranded, and confent to 
 fubjed: themfelves to partial lofs, only where it is 
 borne by a general average. 
 
 Some 
 
 * targa, 230. n. 18,
 
 Partial Loss. 355 
 
 Some difRculty has arifen with regard to the 
 meaning of the word unlefs ; whether, in the 
 claufe, ** unlefs general, or the fhip be ftranded," 
 it is to be taken as an exception, or as a condi- 
 tion. This point was fixed by the following dc- 
 
 cilion. 
 
 Wilson v. Smith. 
 
 ^mith infured Wilfon on the Ihip Bofcawen^ and 
 her cargo of wheat, with the ufual N. B. " Corn, 
 ** fi(h, fruit, ^r. free of average, unlefs general, 
 ** or the iliip be ftranded." The veflel met with 
 a ftorm, in which Ihe was forced to cut away her 
 cable and anchor, was otherwife damaged, and 
 obliged to run to the firft port, and refit. The 
 infurers paid the expence of repairs as a gene- 
 ral average. After being refitted, the fhip con- 
 tinued her voyage ; and when fhe arrived at 
 her port of difcharge, it was difcovered, that 
 the wheat had received damage by the falt- 
 water. 
 
 The affured claimed a particular average for 
 this lofs, as well as the general average for re- 
 pairs. 
 
 Lord Mansfield faid, the word ♦* unlefs^* 
 means the fame as except, and never can be con- 
 ftrued as a condition, in the fenfe put upon that 
 word by the aflured ; namely, that he was to be 
 free from partial lofs, unlefs in two events, iriz, 
 a general average, and ihejlranding of the fliip ; 
 but that, if either of thefe events happened, then 
 he was to be liable to all other average. — The 
 
 words.
 
 35^ Nature of an Insurance Contract. 
 
 words can never mean to leave the infurer fub- 
 jed: to any particular average. — Judgment was 
 accordingly given for the defendant. — 3. Burr* 
 
 According to this decilion, which is undoubt- 
 edly founded in the meaning of the exception, 
 it ought to be expreffed, — '* except general, and 
 " unlefs the fhip be llranded." 
 
 The memorandum ufed at the port of Edin^ 
 hurgh differs little from the London form. It 
 runs thus : " Corn, feed, fait, fiih, fruit, flour, 
 ** and proviiions of all kinds, that are in their na- 
 " ture perilhable, are warranted free from all 
 " average, unlefs general, or the fhip be flrand- 
 " ed ; and all other goods, the (hip and freight 
 " are warranted free from average under Jive per 
 " cent, unlefs general, or the fhip be flranded." 
 
 The Glajgow form varies a good deal. It con- 
 tains, in the body of the inftrument, a freedom 
 from all average whatever, under Jive per cent. 
 And the A^. B. is as follows : 
 
 " N, B. Infurers are not liable for any average- 
 " lofs upon grain, fifh, fruit, wine, provifions, or 
 " other goods, which, in their own nature, are 
 " liable to perilh or decay, by continuing long 
 " on board, or being faulty or decayed before 
 " fliipping ; but the owners of fuch goods (hall 
 ** recover, on a general average, when any 
 " part of them are thrown overboard, for the 
 " prefervation of the whole j and on a particular 
 
 " average,.
 
 Partial Loss. 357 
 
 " average, when the damage happens hyjlrand- 
 '* in^ or bidgingj'^ 
 
 We may obferve, that the expreffion of this laft 
 paflage, limits the particular average for which 
 the infurer is liable, to that which is occafwned 
 by flranding or bulging. The London policy 
 feems to imply, that if the vefTel be ftranded, the 
 infurer fliall bear all partial lofs, whether occa- 
 lioned by that misfortune, or by the periiliable 
 nature of the goods. 
 
 It is .worthy of notice, that, in confequence of 
 this claufe, ** ^free of average," it is necelTary 
 to adopt a different view of what conftitutes the 
 diilindion between a total and partial lofs. It 
 was formerly laid down, that a total lofs is what- 
 ever defeats the voyage. This will not hold, how- 
 ever, where, in the cafe of periiliable commodi- 
 ties, the underwriter has fecured himfelf by the 
 memorandum above ftated. Here the fubjed 
 mull be actually gone. For what is the under- 
 writer's view : — To defend himfelf againft the 
 periJJjable nature of particular commodities, 
 which renders them peculiarly liable to certain 
 accidents. He means to be fccurc from all 
 damage arifing in confequence of that peculiar 
 nature, whether fuch damage be great or fmall ; 
 whether it defeats the voyage, or only diminillies 
 the price of the goods. The efled of the memo- 
 randum, therefore, is to prevent a lofs from being 
 confidered as total, fo long as the fubjccl is in cx- 
 iftence; in order to abandomcnt,it mufl be burnt, 
 
 funk,
 
 358 Nature of an Insurance Contract. 
 
 funk, captured, or otherwife completely deftroy- 
 
 ed. This is eftabliihed by the two following 
 
 cafes. 
 
 Mason v. Skurray. 
 
 Infurance was made by the defendant on a 
 cargo ai peafe on board the Happy Recovery, from 
 London to StAugiiftine^ with the ufual memoran- 
 dum, '■^■Corn, fifh, ^c. free of average, unlefs ge- 
 ** neral, or the fhip be ilranded.'* The peafe ar- 
 rived at the place of deflinatioii, but fo much da- 
 maged, that their produce was three-fourths be- 
 low the freight, which, in confequence of the 
 fhip's arrival, became due. 
 
 The defendant, by four or five witnefles, con- 
 verfant in the fettlement of loffes, proved, that, 
 in the cafe of goods falling under the memoran- 
 dum, it was the ufage to confider the underwrit- 
 er as difcharged, if the commodities arrive at 
 the market. Lord Mansfield faid, that, fince 
 the introduction of the memorandum, every cafe 
 mull depend upon the conftrudion of it. It is 
 exprelTed in general terms ; but muft be explain- 
 ed from ufage. The witnefies all fwear to the 
 ufage, that if the fpecific thing comes to the 
 market, the memorandum is underftood to free 
 the infurer from all demands for a partial lofs. 
 The cafe Boyfield v. Brown, was decided before 
 the introdu6lion of the memorandum. — The 
 jury found for the defendant. — Hil, 1780. At 
 GiiildhalL See Mr ParK's Syjlem, p. 13. 
 
 Cockayne
 
 Partial Loss. 359 
 
 Cockayne v. Frazer. 
 
 Frazer infured Cockayne^ to the amount of 
 L. 100, on the fhip " Three Friends, and on 
 *' goods, l^c. at and from St John's in Newfound- 
 *' land, to her port of difcharge in Portugal :" 
 With the ufual N. B. " Corn, fifh, &c. warrant- 
 " ed free of average, unlefs general, or the lliip 
 " be ftranded.'* 
 
 On 2d December 1783, the fhip failed from 
 Newfoundland, with a cargo of fjb. On i ith 
 December the crew hove overboard 40 quintals, 
 for the general prefervation of Ihip and cargo, 
 and on the 20th, 26 quintals more. They had 
 extremely bad weather, till their arrival at Lif- 
 bon, on the loth January 1784, when a furvey 
 was made, by the Board of Health, at the requell 
 of the captain, who was likewife confignee of 
 the fifti. It appeared to them (and was fo in 
 fad) that the fifh were rendered of no value by 
 the fea-damage.— The fhip did not proceed on 
 
 her voyage. 
 
 In an adtion on the policy, the defendant 
 pleaded ^the general ifTue, and paid into court 
 the fum'of L. 16 : 19 : 6 ;— L. 8, 15 s. as general 
 average on the cargo ; and L. 8 : 4 : 6, as parti- 
 cular average on the fliip. Verdift for the plain- 
 tiff, with L. 51, 15 s. damages, fubjea to the o- 
 pinion of the court on a cafe containing the fads 
 
 above flated. 
 
 Lord
 
 360 Nature of an Insurance Contract. 
 
 Lord Mansfield. — This, like mofl litigations, 
 arifes from miftaking the queftion, and not pro- 
 perly defining terms. This is a very old claufe 
 in policies on perifliable goods. Particular lofles 
 are excepted from the obligation of the infurer, 
 unlefs the fhip has been ftranded. The infurer 
 continues liable for a total lofs \ but a total lofs 
 here is the lofs of the thing, not any damage, 
 however great while it exifts. It is not a dimi- 
 nution of value that is engaged againft, but the 
 lofs of the thing itfelf. 
 
 In common cafes, when the voyage is obftrud:- 
 ed, and not worth purfuing, it is a total lofs. 
 But the memorandum goes on the idea that the 
 infurer is not to be liable for any damage how- 
 ever great. If the thing exifts, though worth 
 nothing, it is fufficient to excufe the under- 
 writer. 
 
 BuLLER, J.— That the voyage here was defeat- 
 ed might be very material in cafes not within 
 the memorandum. In Mafon v. Skurray^ the 
 court thought it a total lofs, and on that it went 
 to a new trial. But, upon the fecond trial, it ap- 
 peared clear that there never had been an in-' 
 ftance in which a total lofs had been paid for, 
 where the thing exifted, though of no value. 
 Pojlea to the defendant. Eajler 25. Qeo, III. 
 B, R, MS. 
 
 3. In open policies upon intereft, and where 
 there is no fuch ftipulation as that now flated, 
 to be " free of average," three fituations may 
 occur. 
 
 Firjl,
 
 Partial Loss. 361 
 
 Firji, The fums underwritten may exadly cor- 
 refpond with, and be equal to the intereft on 
 board. In this cafe of an equal infurance, eve- 
 ry underwriter mult be liable for a partial lofs 
 incurred by his alTured, proportionably to his own 
 fubfcription. 
 
 Secondly f In an open policy on intereft, there 
 may be an oDer-infurance, or double infurance. 
 The nature of thefe was formerly confidered ; 
 and it was obferved, that, in cafes of total lofs, 
 there muft be a proportional deduction from dif- 
 ferent fubfcriptions, until the fums remaining 
 become commenfurate to the real value of the 
 intereft. The fame rule is applicable in partial, 
 as in total lofles. 
 
 Thirdly, Suppofe, in an open policy on inte- 
 reft, the fubjedl to be under-infured, the fums 
 underwritten to be lower than the intereft on 
 board. In fuch a cafe, the owner himfelf bears 
 the rilk of that portion of value which is not in- 
 fured ; he comes in the place of an underwriter, 
 to that extent. A partial lofs, therefore, falls 
 upon the infurers proportionally to their difler- 
 ent fubfcriptions, conjidering the owner of Jbip or 
 cargo as himfelf an infurer of the 'values not other- 
 wife covered. If a total lofs had happened, it is 
 plain he would have loft to that amount ; and 
 he muft fuffer a partial damage in the fame pro- 
 portion. 
 
 On the other hand, where there has happened 
 a ftiipwreck, and a falvage, the infured, if there 
 
 Z 7. be
 
 362 Nature of an Insurance Contract, 
 
 be an under-infurance^ is for the fame reafon en- 
 titled to his proportion of the property recovered. 
 He is an infurer pro tanto^ and mult have the 
 benefits as well as the rilks of that fituation. 
 
 4. The effedl of a valued policy is to ajcertain 
 the amount of interejly for which the underwriter 
 mufl be liable in the event of damage incurred. 
 
 In cafes of total lofs^ we have feen, the valua- 
 tion fixes the obligation of the infurer. If the 
 fubjedl has been honajide overvalued^ the infurer 
 mufl: notwithfl:anding pay the whole fum in the 
 policy, having received a premium correfponding 
 to that amount. If it is undervalued, the owner 
 has himfelf to blame, and mufl.-^fit down content- 
 ed with an incomplete indemnification. 
 
 In partial lojfes, in the fame manner, the da- 
 mage mufl:, in general, be efl:imated not upon the 
 real worth of the fubjed: infured, but upon the va- 
 luation in the policy. With this view, in order to 
 find out what proportion the lofs incurred bears to 
 the prime cofl:, as afcertained by the policy, a 
 comparifon mufl: be made between the values of 
 the goods when damaged or found at the port 
 of difcharge ; and the difference between the 
 values of found and damaged will fhow the pro- 
 portion which the lofs bears to the prime cofl:. 
 Thus, if a cargo of fugar, at any particular port, 
 when in a found fl:ate, would give L. 1000, but 
 when damaged would give only L. 500 ; the 
 difference is L. 500, which Ihows that the lofs 
 fuilained is one half, upon the interefl: infured. 
 
 But
 
 Partial Loss. ^63 
 
 But although the amount of lofs is afcer- 
 tained in this manner by the values at the port 
 of difcharge, yet the difference between found 
 and damaged goods at the port of difcharge, is 
 not the fum which the underwriter muji adually 
 pay; for this would involve him in the contin- 
 gency of the rife and fall of markets, which is no 
 part of the adventure infured. The infurer un- 
 dertakes ail perils of the fea, the dangers of the 
 voyage ; but he never propofes to be anfwerable 
 for the prudence or fuccefs of the merchants 
 fpeculations in trade. 
 
 In the cafe above ftated, therefore, while the 
 difference is found at the port of difcharge be- 
 tween the value of the damaged goods, and the 
 price they would have brought, if found, — it 
 muft not be fuppofed, that the fum fo found, is 
 the adlual lofs which the underwriters are to pay. 
 It merely fhews the proportion which the lofs in- 
 curred bears to the value of the whole fubjedt ; 
 and the infurers are only liable for tht/ame pro- 
 portion of interejl, appearing by the valuation in 
 the policy. If therefore there is a third, a 
 fourth, a fifth, of difference between found and 
 damaged goods at the port of difcharge, the in- 
 furer pays a third, a fourth, a fifth, of the valu- 
 ation in the policy. 
 
 For example, a hogfhead of fugar is infu- 
 red, valued at L. 25. When it comes to the mar- 
 ket, it is found to be damaged, and fells for 
 L. 20. A hbd, of found fugar, of the fame quality, 
 
 fells,
 
 364 Nature of an Insurance Contract. 
 
 fells, at the fame time and place, for L. 30. 
 The difference therefore between found and da- 
 maged is one third, or L. 10. The infurer does 
 not pay L. 10 ; but he pays one third of the 
 L. 25, the value in the policy, or L. 8 : 6 : 8. 
 
 " Suppofe," fays Mr Magens, " 10 bhds. of 
 " tobacco are infured, valued in the lump at 
 '* L. 100; one hogfhead is loft ; on the amount 
 " in quantity of one hhd, the lofs will be 10 per 
 " cent, on the intereft, whether the nett pro- 
 *' ceeds of the tobacco gives^' lofs or profit :—- for 
 " though the merchants 9 hhds, which are not 
 " damaged, Ihould produce nett L. 100, the 
 ** infurer cannot objedl, you infured L. 100, 
 " your tobacco has yielded you nett L. 100, 
 " and therefore you have no demand ; this 
 " would be availing himfelf of the merchant's 
 " profit, to pay the fea-lofs. 
 
 " Again, fuppofe on linens, the valuation or 
 ** invoice covered, is L. 100. — 
 
 At a gaining market, they would produce nett, 
 
 if found, - - L. 120 o o 
 
 But being damaged, produce nett 108 o o 
 
 The lofs on L.I 20, is - 12 o o 
 
 If L. i2olofe L. 12, — L. loolofes L. 10 o o 
 
 At
 
 Partial Loss. 365 
 
 At a loling market, they would produce nett, 
 
 if found, - - L. 80 o o 
 
 Being damaged, produce nett 72 o o 
 
 The lofs on L. 80, is - L. 8 o o 
 
 If L. 80 lofe L. 8, — L. 100 lofes L. lo o o 
 
 " In both inftances, the average or damage 
 " is one tenth part, or 10 per cent. On the 
 ** other hand, if the infurer were to pay the 
 *• difference between found and damaged, at the 
 " port of difcharge, he would in the one cafe be 
 ** L. 2 a gainer, and in the other L. 2 a lofer, 
 " by the circumftances of the market.*' 
 
 In certain cafes of partial lofs, however, upon 
 a valued policy, it has been faid, that the 'valu- 
 ation mujl he opened up. 
 
 In order to underlland this, it is neceflary to 
 diftinguifli between two different modes of valu- 
 ation. A cargo is fometimes valued by . the 
 weight, meafure, or package ; as when a cargo 
 of tobacco is valued at fo much a hhd. And 
 this may be underllood to take place wherever 
 the nature of the cargo, and the manner in 
 which it admits of menfuration or valuation, 
 is pointed out in the policy ; as where infurance 
 is made "on 10 bales of linen, valued at L. loo ;" 
 this is evidently the fame as if the policy had 
 
 faid,
 
 366 Nature of an Insurance Contract. 
 
 faid, — " on linens valued at L. 10 per bale." 
 This mode of valuing by weight, meafure, or 
 package, has the fame effect as if each fpecified 
 package was taken apart, and made the fub- 
 jed of a feparate valuation. 
 
 But a cargo is often valued generally ^ without 
 fpccifying, either its nature, or the mode in 
 which it can admit of menfuration or valuation ; 
 fometimes along with the fhip ; fometimes at the 
 fums underwritten. " On Ihip Sally, and goods 
 " per faid Sally ^ valued at the fums underwrit- 
 *' ten."—" On whatfoever goods and merchan- 
 ** difes loaded, or to be loaded, on board the 
 " faid fhip — valued at L. 1000.'* 
 
 In the former cafe, where each package is va- 
 lued feparately, a very obvious expedient occurs, 
 in order to afcertain the partial lofs which the 
 underwriter mufl bear. It is only neceffary to 
 take the feparate fubjed, whether bala, parcel, 
 package, hogfhead, or ton, (according as it is 
 defcribed in the policy), to find the proportion 
 between its value when found, and in its dama- 
 ged flate, at the port of delivery ; and to calcu- 
 late the fame proportion upon the valuation in 
 the policy. So that here the valuation is flill 
 held as a proof of the interefl ; and the obferva- 
 tion, " that, in partial loffes on a valued policy, 
 " the valuation mufl be opened up,'* does not 
 appear to be applicable. 
 
 But
 
 Partial Loss. 367 
 
 But where a general valuation has taken place, 
 the cafe is very different. For example, when 
 fliip and cargo are valued jointly, or, what is 
 more common, where a whole cargo, confiding 
 of a variety of different articles, is valued in the 
 lump ; Here the affured does not appear entitled 
 to demand the proportion of damage incurred 
 by any individual package of goods ; for exam- 
 ple, by any individual calk of liquor, or hhd. 
 of tobacco. He is only entitled to the propor- 
 tion which the damage incurred bears to the 
 value of the whole intereft ; and it becomes ne- 
 ceffary, therefore, to enquire into the compara- 
 tive values of all the different articles of which 
 the cargo confifts. 
 
 Suppofe a cargo, confifting of liquors, broad 
 cloth, and coals, to be valued, in a general fum, 
 at L. 500, without any fpecification as to the 
 number of calks, bales, or tons. And let the 
 real value be L. 1000, fo that the cargo is un- 
 dervalued one half. Suppofe one of the calks of 
 liquor to be ftaved. In order to afcertain the 
 amount of the affured's claim, and to find what 
 proportion of the L. 500, flated in the valuation, 
 is due, it is neceffary to enquire, not only what 
 proportion of damage is done to the individual 
 calk, but what is the comparative value of that 
 calk, with the broad cloth and the coals, which 
 form the remainder of the cargo ; confequcntly 
 it is neceffary to prove the a£lual values of the 
 whole. The fame thing mull happen in an 
 
 over-
 
 368 Nature of an Insurance Contract. 
 
 over-valuation, and in every cafe whatever ; for 
 without opening up the policy, and going into 
 the real values, we can never judge whether the 
 infurance be equal to the intereji or not. 
 
 In every inftance of general valuation, there- 
 fore, a partial lofs renders the valuing claufe of 
 no ufe ; for it becomes neceffary to prove the 
 adlual values, as in an open policy. It has be- 
 come cuftomary in thofe cafes, where the real 
 values muil thus, at any rate, be proved, to dif- 
 regard entirely the valuation, and to proportion 
 the partial lofs upon the real intereft. 
 
 This diltindion between the efFeds of a fepa- 
 rate and a general valuation, is illuflrated by the 
 two following remarkable deciiions. 
 
 Lewis 1;. Rucker. 
 
 The defendant infured " goods aboard a fhip 
 *' the Vrow Martha, at and from St Thomas IJland 
 " to Hamhurg,^'' The goods (which confifted of 
 fugars, coffee, and indigo) w^ere " valued at 
 " L^ioper hogjhead, the clayed fugars, and L. 20 
 *' per hog/head, the Mufcovado ; warranted free 
 ** from average under j^z;^ per cent, unlefs gene- 
 *' ral, or the fliip be ftranded." The coffee and 
 indigo were likewife refpe<Sively valued. 
 
 In the courfe of the voyage, the fea-water got 
 in ; and when the Ihip arrived at Hamburg, it ap- 
 peared, that every hogfhead of the fugar was da- 
 maged ; which made it neceffary to fell them im- 
 mediately. And the difference between the price 
 
 which
 
 Of Partial Loss. 369 
 
 which they brought by reafon of the damage, 
 and what they might have been fold for at Ham- 
 burg, if found, was as L.20 : o : 8 /><?r hoglhead, 
 is to L. 23 : 7 : 8 per hogfliead, (that is, if found, 
 they would have been worth L.23: 7: 8 per 
 hoglbead ; as damaged, they were only worth 
 L. 20 : o : 8 per hogfhead.) 
 
 In an action upon the policy, the defendant 
 paid money into Court, by the following rule 
 of eflimating the damage; he paid the like pro- 
 portion of the fum at which the fugars were va- 
 lued in the policy, as the difference between found 
 and damaged fugars bore to found fugars at Ham- 
 burg. The plaintiff objected to this mcafure for 
 eflimating the damage. 
 
 To diflinguifli this cafe, by particular circum- 
 ftances, the plaintiff called evidence to prove, 
 that if he had kept his fugars for fome time, as 
 he had intended to do, they would have born a 
 much higher price; and therefore the lofs which 
 arofe from the neceffity of their being brought 
 to an immediate fale, owing to the fea-damage, 
 ought to be included. 
 
 A verdid having been found for the defend- 
 ant by a fpecial jury; upon motion for a new 
 trial, Lord Mansfield delivered the opinion of 
 the Court. 
 
 His Lordlhip ftated the rule adopted by the 
 defendant and jury. — The defendant takes the 
 proportion of the difference between found and 
 damaged at the port of delivery, and pays that 
 
 A a a proportion
 
 37© Nature of an Insurance Contract . 
 
 proportion xipon the value fpec'ified in the policy ; 
 and has no regard to the price in money, which 
 either the found or damaged goods bore in the 
 port of delivery. He fays, the proportion of the 
 difference is equally the rule, whether the goods 
 come to a rifmg or a falling market. For in- 
 ftance, fuppofe the value in the pohcy L. 30 ; — - 
 they are damaged, but fell for L. 40. If they 
 had been foand, they would have fold for L. 50; 
 the difference is a fifth : The infurer then mull 
 pay a jifth of the prime cojl or value in the policy, 
 (that is L. 6.) E converfo ; — if they come to a lo- 
 ling market, and fell for L. 10, being damaged, 
 but would have fold for L. 20, if found; the dif- 
 ference is one half. The infurer muft pay half 
 the prime coil or value in the policy, (that is 
 
 L. 15.) 
 
 To this rule two objeclions had been made. 
 wio. That this was going by a different meafure 
 in the cafes of partial and total lofs ; for upon a 
 total lofs, the prime coll or value in the policy 
 muft be paid ; the anfwer is, that where there is 
 a total lofs of fhip and cargo, or where any fepa- 
 rate p^'.rt of the cargo is entirely loft, there the 
 infurer is liable for the prime coft, without re- 
 gard to any iubfequent eftimate. But where a 
 partial damage is incurred by the cargo, it is im- 
 poffible to fix from the prime coft what is the 
 amount of that damage. The only way is by 
 calculation at the port of delivery, to find the 
 proportion in which the goods are fpoiled ; and
 
 Of Partial Loss. 371 
 
 as the infurer pays the whole prune colt, if the 
 thing be wholly loll ; lb if it be only a third, 
 fourth, or fifth, worle, he pays a third, fourth, 
 or fifth, of the prime coft or valuation of the goods 
 fo damaged. 
 
 2do, The cafe had been entangled with diffi- 
 culties, founded upon this being a valued policy. 
 The effecl of a valuation is merely lojix the prime 
 cojl, — To argue, *' that there can be no adjuft- 
 " ment of an average lofs upon a valued policy,'* 
 is contrary to the very terms of the policy itfelf, 
 which is fubjecT: to average, if the lofs upon fu-- 
 gars exceed Jive per cent. If there can be no 
 average lofs in a valued policy, the alTured here 
 cannot recover at all ; for this furely is not a total 
 lofs. 
 
 In oppofition to the meafure the jury have gone 
 by, the plaintiiT contends, that he ought to be 
 paid the W'hole value in the policy, upon one of 
 two grounds : 
 
 I/?, Becaufe the general rule of eftimating 
 fhould be the difference between the price the 
 damaged goods fell for, and the prime coft, (or 
 value in the policy.) Here the damaged fold at 
 L. 20 : o: ^6 per hogfliead, and the underwriter 
 fhould make it up L. 30. Anfw. This would in- 
 volve the underwriter in the rife or fall of the 
 market. It would fubjed: him in fome cafes to 
 pay vaftly more than the lofs ; in others it would 
 deprive the infured of any fatisfaclion, though 
 there was a lofs. For inftancc, fuppoib the prime 
 
 coft
 
 37- Nature of an Insurance Contract. 
 
 coll or value in the policy L. 30 per hogfliead ; 
 the fugars are irijufed. At a lofing market, the 
 price of the beft is L. 20/>^rhog{head ; the price 
 of the damaged is L. 19 : 10. The lofs is about 
 a fortieth, and the infured would be to pay above 
 a third. — Suppofe they come to a riling market, 
 and the found fugars fell for L. ^oper hoglhead, 
 and the damaged for L. 35, the lofs is an eighth; 
 yet the infurer would be to pay nothing. 
 
 idj Becaufe the fugars would have fold for a 
 higher price, if the damage from the fea-water 
 had not made an immediate fale neceflary. And 
 here likewife the verdict feemed to be right. The 
 indemnity propofed by infurance is for damage 
 from the fea, and not from difappointment in 
 fpeculations and fchemes of trade. The obliga- 
 tion of the underwriter is incurred upon the 
 Ihip's arrival and landing her cargo ; and the ad- 
 juftment of a lofs cannot depend upon any events 
 of a poilerior date. — The rule difcharged. 2. Burr„ 
 1 167. 
 
 Le Cras againjl Hughes. 
 
 This was an infurance ** on the Ihip St Dq- 
 mingo^ prize to Captain Luttrel, and on goods 
 by faid ftiip, valued at the fums underwritten.^* 
 There was no value put on the whole, in the 
 body of the policy, but particular fums added 
 to the fubrcribers names on the back of it. The 
 fhip was loft, one tenth of the goods only faved. 
 
 The
 
 Of Partial Loss. ^7> 
 
 The dedudion for the goods faved, was ap- 
 pointed to be fettled by a broker ; but a doubt 
 arofe as to the mode of computing it. Whether 
 one tenth o( the /urn infured, or one tenth of the 
 real value fhould be deducted ; whether the af- 
 fured were to recover nine tenths of the real va- 
 lue ; in fliort, whether it was to be treated' as an 
 open or valued policy. Bonham^ the broker, faid, 
 the pradice was to pay the whole fum infured, 
 in cafe of a total lofs on fuch a policy ; but'ffi 
 cafe of a partial lofs, it was confidered as an opfeii 
 policy, and a proportion paid of the real value* 
 infured. When this was firft mentioned, the 
 Court thought it a valued policy ; but they direct- 
 ed Bonham to make the calculation both ways. 
 
 Lord Mansfield. — I at firft thought this like 
 Lewis V, Rucker, and that an aliquot part fhould 
 be taken, without going into the values. But they 
 are notfimilar. That cafe is right, and fhould go- 
 vern wherever the goods arc defcribed and valued 
 by the calk or package. But here the value is 
 afcertained only by the fum infured. The only 
 purpofe of a valuing claufe, to fave the trouble 
 of proving the value, is not anfwered in an ave- 
 rage lofs upon fuch a policy as this, where thd 
 adtual values mud be proved, to afcertain the 
 proportion of what is faved to what is loft. The 
 real values muft therefore be gone into. The 
 conftant ufage has been as ftated by the broker. 
 
 In Erafmus v. Banks, (^Mkb. 21. Geo. II.) 
 Lee, C. J. permitted the alTurcd to fliew his 
 
 whole
 
 374 Nature of an Insurance Contract. 
 
 whole lofs, which v/as more than the fum in- 
 fured. Smith v. Flexney (at G. H, 1747) was 
 cited in that cafe, in which the plaintiff not be- 
 ing able to prove any intereft, was nonfuited. 
 The computation muft be on the real intereft 
 on board. Judgment for the plaintiff. — Eajl, 
 24. Geo, III.— MS, 
 
 From the diftindion that has been attempted 
 between a general and a particular valuation, 
 we may find a fatisfadory folution of a difficulty 
 ftarted by Mr Magensy in relation to policies war- 
 ranting againft average under a certain fum. A 
 London policy frees the infurer from partial lofs 
 under 3 per cent. Suppofe then, fays Mr Af«- 
 genSy a merchant has fhipped a quantity of 
 goods, and, on arrival, a fmali part are fpoiled, 
 fo as to be worth nothing ; if the damage be 
 calculated on the whole, it may not amount to 
 3 per cent. ; but if on the particular fubjed da- 
 maged, it may be a total lofs. 
 
 It fliould feem, that where a particular pack- 
 age is feparately valued, a lofs may be calcu- 
 lated on that individual package apart ; as where 
 fugar is valued at fo much a caik, if one cafk is 
 damaged, it muft be coniidered whether the lofs 
 amounts to 3 per cent, upon that individual cafk. 
 But if a cargo is valued in the lump, the amount 
 of lofs upon the whole head muft be taken into 
 the computation, 
 
 E L E-
 
 ELEMENTS 
 
 O F 
 
 INSURANCE. 
 
 PART III. 
 
 Of thofe Circumjlances peculiar to Infurance^ which 
 extinguijh the Obligations of Parties, a?id 'va- 
 cate the Policy. 
 
 HAVING examined how the obligations of 
 infurance may be created, and what are 
 their nature and extent ; it remains to conlider 
 by what circumftances they may be dillblved, 
 and the effedl of the policy deftroyed, either in 
 whole or in part. 
 
 And here it is not propofcd to enter upon the 
 general modes by which all agreements indif- 
 ferently may be extinguifhed ; but only thofe 
 which are attended with fome peculiarity in 
 their application to the bargain of infurance. 
 For this reafon it is fcarcely necclTary to obfcrvc, 
 ihat when, on the one hand, the fubjecft of the in. 
 
 furance
 
 376 Obligations of Insurance. 
 
 furance incurs no lofs ; or when, on the other, 
 any lofs incurred is paid for by the infurer, the 
 obligation of this laft is extinguilhed by the per- 
 formance of all that was undertaken. 
 
 The great circumftance which is productive 
 of peculiarity in deftroying the effedt of an in- 
 furance pohcy, is breach of contrail upon the 
 part of the alTured : A circumftance ariling 
 from the conditional nature of the bargain. 
 
 In this agreement, the underwriter, it was for- 
 merly obferved, for a confideration received, pro- 
 mifes to indemnify the aflured from lofs, upon 
 the exiftence of fome future event. The event to 
 which this obligation has a reference, muft be ful- 
 ly underftood between the parties. And its ex- 
 iftence is a condition without which the infurer 
 does not confent to bind himfelf. In relation to a 
 mercantile adventure, the circumftances of this 
 event may be of a complicated nature, and all 
 thofe circumftances ought to be fully fettled be- 
 fore the bargain can be complete. A policy of 
 infurance explains, therefore, the nature of the 
 perils which are to be undertaken, and the na- 
 ture of the voyage or adventure, in the courfe of 
 which they are to be undertaken. It mentions 
 the place from which it is propofed that the vef- 
 fel Ihall fet out, the line of her voyage, the port 
 to which ftie ftiali direct her courfe, and where 
 the infurance is fuppofed to terminate ; it like- 
 wife frequently contains a number of particular 
 provifions, tending to diminifti the rifk of the 
 
 adventure,
 
 HOW DISSOLVED. 377 
 
 adventure, in favour of the underwriter. All 
 thofe fpecific-itions of the voyage are limitations 
 of the hazard undertaken by the infurer ; and 
 conditions of the agreement by which he be- 
 comes bound. It is necelTary, in order to pre- 
 ferve the aifured's claim of indemnity, that thefe 
 conditions fliould be fulfilled. 
 
 What degree of exadtnefs and literal interpre- 
 tation is neceflary in this refpedt ; what extent 
 of conftrudion is due to the terms of the policy ; 
 and confequently what is held to be a breach of 
 contract, it now remains to enquire. 
 
 I. In every infurance, the underwriter is very 
 much at the mercy of the alTured, both with re- 
 fpecl to information, and the performance of 
 thofe ftipulations and conditions which may be 
 agreed upon, in his favour. It has been for- 
 merly fhewn how much it is therefore held in- 
 cumbent upon the aifured, to make a full and 
 complete communication of all he knows with 
 regard to the riik ; and that, without fuch com- 
 munication, the policy is null ab initio. 
 
 The fame confideration requires that the af- 
 fured fliould be kept*with a very ftridt hand to 
 the performance of thofe articles, and the fulfil- 
 ment of thofe conditions which the underwriter 
 may llipulate. The alTured mull not depart 
 from that line of voyage which is pointed out 
 by the policy, otherwife the infurer fhall be 
 
 free. 
 
 Bbb If
 
 378 Obligations of Insurance, 
 
 If any variation from the agreement fhali 
 take place, and a damage fhall be incurred, in 
 confequence of that variation^ it requires no illuf- 
 tration that for fuch damage the underwriter 
 cannot be refponfible. A contrary rule would 
 be fubjecling him to the confequences of a 
 breach of contradl upon the part of the aflured. 
 
 As little does it require argument to Ihow, 
 that the alTured cannot, by changing the circum- 
 ftances of the adventure from thofe exprefled or 
 implied in the policy, increafe the rifk under- 
 taken above the rilk underilood. 
 
 But fuppofmg a variation to be made from the 
 exa6l terms of the policy, and fuppoiing the va- 
 ried courfe to imply no greater rijk than the one 
 infured ; or, fuppoiing that no lofs happens in 
 the courfe of the variation^ but at fome other pe- 
 riod of the adventure ; although in thefe cafes 
 it does not appear that the underwriter is a 
 lofer by the variation, it is, neverthelefs, an efta- 
 blifhed point that he becomes free, and that 
 the policy is vacated. The rifle run mull not 
 only be no greater than that underilood, but it 
 mull be the fame. 
 
 There is, it may be obferved, great difference 
 between certain fpecies of agreements in refpecl 
 of the obligation which lies upon the debtor 
 to fulfil the con trad by fpecific performance. 
 Where the preftation undertaken admits of a 
 value different from the mere pecuniary advan- 
 tage to be reaped from it ; where it may be fup- 
 
 pofed
 
 HOW DISSOLVED. 37^) 
 
 pofed to poflefs an eftimation in the mind of the 
 creditor, independent of the money it is worth ; 
 in every fuch inftance the debtor is bound to 
 Specific performance. But where the value is 
 merely pecuniary ; where one preftation is as 
 good as another of the kind \ in this cafe the 
 debtor may be freed from fpecilic performance, 
 by paying the damage and intereft. 
 
 It may at firft light appear, that infurance is 
 one of thofe contracts in which there is no room 
 for a particular choice or eilimation, independ- 
 ent of the pecuniary value. The underwriter, 
 when he infures, has no affection or preference 
 for one adventure above another, except fo far 
 as it has a relation to the premium offered. It 
 might feem, therefore, that, in the fame manner 
 as a perfon who had borrowed a guinea might 
 pay in filver, inftead of the identical gold. So an 
 alTured might vary from the voyage fpecified, al- 
 ways taking care that the underwriter was no 
 lofer by the change ; that he was not expofed to 
 a greater^ though a different rifk from that un- 
 derwritten. 
 
 But in reality an infurance differs in this re- 
 fpect, from moft other contracts. It is a bargain 
 in relation to a future uncertain event, and 
 therefore partakes of the nature of a wager. A 
 wager, it may be obferved, is a trial of fkill as to 
 a queftion of probability. Each party is indu- 
 ced to wager by the different weight which cer- 
 tain views and confiderations have upon differ- 
 ent
 
 380 Obligations of Insurance, 
 
 ent minds ; and the wager derives its origin not 
 from tliofe general views of a probability, in 
 which men are difpofed to agree, but from thofe 
 peculiar views and modes of thinking in which 
 one man is apt to be a good deal diflerent from 
 others. In examining, therefore, what is the 
 indudive caufe of a wager, and what is the va- 
 lue, to each party ^ of his bett, we are to conlider, 
 not what the probability is in reality, but what 
 each party may think of it. 
 
 Rilks are not the obje6ls of preference from 
 attachment and feeling, like a fpot of ground, 
 a horfe, a medal : But they are the objefts of 
 very different eftimation to the judgment or 
 fancy. People may form, upon folid views of 
 reafoning, very different opinions of the amount 
 of a probability. Still more are they apt to be 
 fwayed by the operation of fanciful circum- 
 ftances upon the imagination. Much has been 
 faid of the eagernefs people often entertain to 
 procure a particular ticket in the lottery. Some 
 fanciful combination, often exceedingly ridicu- 
 lous, determines them to undertake a particu- 
 lar rifk. The probability of two events may 
 be really the fame, and yet appear very diffe- 
 rent to the minds of different men. It would 
 be unjuft, therefore, to fubftitute one rilk in 
 place of another, although the former, in the 
 common apprehenfion of mankind, Ihould be no 
 greater than the latter ; for it was the peculiar 
 'views of parties that were the inducements to 
 
 the 
 
 /
 
 HOW DISSOLVED. 381 
 
 the wager; alter the precife circumftances of 
 the cafe, and the indudivc caufe of the wager, 
 the dependence which each man has upon his 
 own peculiar views, no longer fubfiits. 
 
 Nay, it may be obferved, that we are not en- 
 titled even to fubftitute, what, in the common 
 opinion of mankind, might appear a better rilk 
 in place of a ixjorfe ; for the more defperate any 
 wager is, we have the ftronger evidence that the 
 wagerer was led by a peculiarity of opinion^ and 
 that he was the more fixed upon that precife 
 rife, and no other. 
 
 Suppofe, therefore, a perfon betts upon a 
 race-horfe, and, before the race begins, that 
 horfe is drawn, and another put in his place ; 
 the wagerer will not be liable for the rilk upon 
 the fecond horfe, although he fhould be as fwift 
 as, or fwifter than the other. In the fame man- 
 ner, if I infure a voyage to the Baltic, and the 
 (hip alters her deilination and fails to the Me- 
 diterranean ; I am not fubjecl to the rifk, al- 
 though the two voyages lliould be perfectly ade- 
 quate to each other. In thefe cafes the prin- 
 ciple is clear. In others, where the effedl of 
 real or fanciful circumftances, in varying the 
 fuppofed amount of the rifk, may not be fo ftri- 
 king, the fame reafoning mufl ftill, in fome de- 
 gree, be applicable. 
 
 It may farther be obferved, that the particu- 
 lar fituation of parties, in the contrad: of infu- 
 rance, makes it expedient, to enforce this rule, 
 
 th^t
 
 382 Insurance Contract, how dissolved. 
 
 that a variation from the policy Ihall liberate the 
 infurer, whether the rilk be increafed or di- 
 minilhed. For otherwife, the affured, from his 
 fuperior knowledge of every particular relating 
 to the adventure, might, under the pretence of 
 varying^ without incrtajing the rilk, practife 
 numberlefs frauds, which the infurer would very 
 feldom have it in his power to detect, it is ne- 
 ceifary, therefore, to affix a fevere penalty to the 
 fmalleft variation from the line of voyage under- 
 taken ; left the affured, under the pretence of an 
 innocent 'variation of the rifk, might contrive to 
 increafe it to the prejudice of the other party. 
 
 2. Having faid fo much, in general, with re- 
 gard to the adherence that is requilite upon the 
 part of the affured, to the ftrid letter of an in- 
 furance-policy ; it remains farther to illuftrate 
 the fubjecl by a view of the different fort of va- 
 riations that occur, and which have the effect to 
 deftroy the obligation of the infurer. 
 
 Variations from an infurance-contradt may be 
 of two kinds. The affured may, in the firjl 
 place, exceed the powers with which he is en- 
 trufted. He may take fteps which are not au- 
 thorifed by the agreement ; for example, he may 
 fail to ports and places, with regard to which the 
 policy is filent. He may be guilty of what, in 
 the expreffion of infurance-law, is called an al- 
 teration of^ or a deviation from^ the line of voy- 
 age undertaken by the infurer. Or, in the fe- 
 
 cond
 
 Alteration.— Deviation. 383 
 
 cond place, he may be guilty of a failure in per- 
 forming fome of thofe terms and conditions that 
 are exprefsly ftipulated ; for example, he may 
 neglect to fulfil a claufe by which the fhip is 
 warranted to fail with convoy^ or to fail before a 
 certain day. He may do more, on the one hand, 
 than he is warranted to attempt ; or lefs, on the 
 other, than he has undertaken. 
 
 Thefe different fpecies of failure, which we 
 may diilinguifli by the names of variation from 
 the policy, and non-performance of it, fecm to de- 
 ferve a feparate confideration. 
 
 Laflly^ We may examine what effed a failure, 
 with regard to the conditions of the contrad, 
 ought to have on the refloration of premium. 
 
 Sect. I. Effe5i of the AJfured exceeding his Powers^ 
 or of Variation fro7n the Policy, 
 
 I. Variation from the terms of an infurance- 
 contradl includes two fpecies, which require to 
 be diflinguifhed from each other, viz. alteration 
 of the voyage, and deviation from it. 
 
 It was formerly mentioned, that, after a policy 
 had been fubfcribed by the underwriter, it was 
 ftill competent for the affured to retrad, by 
 breaking up the voyage, and altering the defli- 
 nation of his veflTel ; and that, in confequence 
 of fuch a meafure, the alTured was liberated 
 from the policy, and entitled to recover his pre- 
 mium,
 
 384 Insurance Contract, how dissolved. 
 
 mium, allowing to the underwriter a fmall de- 
 dudion upon the fum infured. 
 
 The fame change of meafures, the fame alte- 
 ration of the plan of the adventure, which enti- 
 tles the afllired to recover his premium, muft of 
 courfe liberate the infurer from hazard. When 
 the one contradling party becomes free, the 
 other cannot continue fubjed to obligation. Nor 
 is it neceffary for this purpofe, that the altera- 
 tion Ihould imply fault, in either of the contrad- 
 ing parties. The cafe becomes precifely the 
 fame, as if a pcrfon has betted upon a particular 
 race-horfe, and before the race that horfe is 
 drawn, or dies, and another is fubftituted in its 
 place. The riili is no longer the fame that was 
 meant to be undertaken. 
 
 It is faid accordingly, in the ordinance of 
 Antwerp, that ** vwhen it can be proved againft 
 " any one, either by charter-party, bills of load- 
 " ing, affreightment, or otherwife, or even by 
 " lawful witnefles, that he has altered the voyage 
 " infured upon, and which it was declared in 
 " the infurance was intended, then he Ihall 
 " have no power to demand any thing in re- 
 " fped of fuch infurance, by reafon of the faid 
 " alteration *.'* 
 
 Upon 
 
 * It may probably occur, that an alteration of the voyage 
 is not properly a breach of the contrad : When the po- 
 licy is receded from, before the commencement of rifh, it is 
 not properly broken j for it never was complete. But this 
 
 inaccuracy
 
 Alteration. — Deviation. 389 
 
 Upon precifely the fame principles the under- 
 writer mufl be freed from his obligation, where 
 the general delign of the voyage is not altered, 
 but where, in the courfe of the adventure origi- 
 nally propofed, and after the rifk undertaken 
 has actually commenced, a variation is adopted 
 from the terms of the policy. This is called a 
 deviation. 
 
 Every variation from the policy, adopted after 
 the rilk has commenced, mud imply either 
 fault and mifconduct, or fraud and difhonelt in- 
 tention fomewhere. And here lies the diilinc- 
 tion between a deviation and an a6l of baratry. 
 If there is a departure from the policy with a 
 fraudulent intention, it is baratry ; if from mere 
 negligence or mifcondudt, it is a deviation. Na- 
 turally, it was obferved, the infurer is not liable 
 for any departure whatever from the terms of 
 his agreement ; in other words, he is not rcfpon- 
 fible for the aflured's breach of contrad. He 
 undertakes, by an exprefs claufe, the baratry^ 
 or fraudulent milbehaviour, of mafter and crew ; 
 but he is, in this country, liberated from rilk, 
 by a deviation, which implies mere fault. 
 
 An alteration of the voyage taking place pre- 
 vious to the commencement of rilk, fuppofes the 
 acceffion of the aflured themfelves. A deviation 
 does not necelTarily imply any fuch knowledge 
 
 C c c or 
 
 inaccuracy of method has been overlooked, in order to con- 
 trail the doftrlne of fl//erfl/zo« with that of deviation} t!ii''. 
 being by far the moft important vitw of the lubjedit.
 
 390 Insurance Contract, how dissolved. 
 
 or concurrence. It may be concerted by the af- 
 fured, or it may be the private deed of the ma- 
 tter and fhip's company. Baratry, therefore, 
 is more properly oppofed to a deviation^ than to 
 an alteration ; for, as was formerly fhown, there 
 can be no baratry with the accejfion of the own- 
 ers ; and therefore it fuppofes, in general, a 
 variation fubfequent to the commencement of 
 
 rifk. 
 
 Several circumftances feem jointly neceflary 
 to imply baratry. There muft be a breach of 
 orders, or of the mailer's duty to the owner ; it 
 muft be for the private intereft of the matter 
 or crew ; and it muft be evidently calculated to 
 injure fome party concerned. The abfence of 
 any of thefe circumftances feems to deftroy the 
 idea of fraudulent intention, and to reduce the 
 breach of the policy to a deviation. Any depar- 
 ture from the voyage, faulty as well as fraudu- 
 lent, may be attended with difobedience of in- 
 ftrudlions, wherever it is the private deed of the 
 matter or crew. A mere deviation or alteration 
 may be calculated for the intereft of the matter 
 and crew ; and no baratry will be inferred, pro- 
 viding the breach of the policy has the concur- 
 rence of the ftiip-owners, or does not appear ca- 
 pable of producing any detriment to the diffe- 
 rent parties concerned. And however obviouC- 
 \y prejudicial a departure from the contrad may 
 be to the underwriters, the imputation of ba- 
 ratry will be removed by the inftrudions of 
 
 the
 
 Alteration. — Deviation. 391 
 
 the fliip- owner *. The common cafes of devi- 
 ation are either, where, after the commence- 
 ment of rilk, the alTured themfelves make fome 
 variation in the voyage, or elfe where the ma- 
 iler departs from his inilrudlions, from fome 
 foolilh and imprudent fcheme of advantage to 
 his employers ; or, at leaft, if it is for his own 
 convenience, intereil, or pleafure, where he does 
 not fuppofe it will be attended with prejudice to 
 thofe concerned. 
 
 1. From the general views formerly dated, 
 it follows, that every policy ought to contain an 
 explicit enumeration of the principal circumftan- 
 ces which conftitute the rilk of the adventure 
 infured. 
 
 The aflured, it is obvious, mufl necelTarily be 
 acquainted with the nature and plan of the ad- 
 venture ; he mufl know the ports from and to 
 which the veffel is to (leer, and at which flie is 
 to touch in the courfe of her voyage. Of thefe 
 the infurer can know nothing, farther than what 
 he learns from the policy, or from the infurance- 
 broker. Even with regard to the ftrength, litua- 
 tion and outfit of the fhip, and the condition of 
 the cargo, his means of information are, compa- 
 ratively, very imperfed:. There is no reafon to 
 prefume, therefore, that any circumflance rela- 
 ting to the peculiar rijks of the adventure, was 
 in the view of the infurer at fubfcribing the con- 
 
 tradl. 
 
 * See the cafes Valleio v. Wheeler , and Nutt againjl Bour. 
 dieu^ under Baratry.
 
 392 Insurance Contract, how dissolved. 
 
 tra(5l. In point of expediency, likewife, it is 
 obvious, that parties are, by no means, on an 
 equal footing, and that the danger of fraud and 
 impolition is almoft entirely upon one fide. 
 
 A full delineation of the voyage, feems, there- 
 fore, an eflential circumflance in a maritime po- 
 licy. And both equity and utility require, that 
 the inflrument fliould be ftri6lly interpreted 
 againft the aflured ; that the underwriter fliould 
 be liable to no rifk, to which he does not ex- 
 pre/sly fubjed himfelf. No obligation is infer- 
 red by conftrudtion merely ; the aflured has no 
 implied powers -, he cannot go beyond the in- 
 flrument. 
 
 Neither, in carrying this rule into practice, is 
 any latitude whatever allowed to the aflured. 
 The circumftances of the adventure, as pointed 
 out by the terms of the policy, muft be adhered 
 to in the ftridefl: and moft punctual manner. 
 There is no difference, in point of effedl, be- 
 tween a great and a fmall variation from the po- 
 licy : Such a diftindlion could admit of no accu- 
 rate rule. To vary, in the fmalleft particular, 
 from the original plan of the voyage, conftitutes 
 an alteration : In following out this original plan, 
 to depart, in the minuteft circumflance, from 
 the line chalked out by the policy, infers a devia- 
 tion. In this refpect, the effedt of an alteration 
 and a deviation is the fame. 
 
 Nor is it of importance, whether the under- 
 writer is a lofer by the variation, or whether the 
 
 ri(k
 
 Alteration. — Deviation. 39^ 
 
 rifk be thereby, in the general opinion, vicreafed or 
 dimini/Jjed, It muft be the farne that was infured. 
 
 This general principle, that an infurance-con- 
 tracfl demands a ftrift interpretation of the in- 
 ftrument in favour of the infurer, and againft the 
 aflured ; that the latter cannot exceed the ft rift 
 letter of the policy ; and that the former is laid 
 under no conjlrudive obligation, — appears con- 
 fpicuous in a variety of lituations that may occur 
 in the courfe of a mercantile adventure. 
 
 The moft obvious illuftration fuggefts itfelf, 
 where the (hip has departed from the line of failing 
 marked out by the policy, and underftood by the 
 infurer. The ports of commencement and ter- 
 mination of rifk are exprefTed in every policy. 
 It is implied, that the aflured fhall ufe all pof- 
 lible diligence and difpatch, in proceeding from 
 the one to the other. The veiTel, therefore, muft 
 follow the moji direEl and eafy route ; and if 
 fhe turns to the right or left without a good rea- 
 fon ; if flie calls or touches at any port which is 
 not exprefsly fpeciiied, the infurer's obligation is 
 at an end. 
 
 The efted is the fame, whether the velTel fhall 
 touch or not, at any port that is not fpecified, if 
 flie follows a fcheme of trade, an obje(ft of advan- 
 tage, that is in any refped: difierent from the • 
 original meaning and intention of parties in the 
 contrad. 
 
 But the principles which regulate the dodrine 
 of deviation, are not confined to the fingle cafe, 
 
 where
 
 394 Insurance Contract, how dissolved. 
 
 where the fhip varies the courfe of her voyage. 
 The rifk of a maritime adventure depends on a 
 variety of other circumftances than the line of 
 failing. For example, it may be affeded by the 
 particular ftrength and conftrudlion of the veflel, 
 which is the fubje6l of the infurance. The in- 
 furer undertakes the hazard of one particular 
 fhip, and no other ; and therefore the aiTured 
 cannot, at his own option, change the fhip, fo as 
 to transfer the fecurity. A voluntary change of 
 the JJjip, without good caufe, would produce a 
 variation of the rilk run, from that held out by 
 the policy, and like a deviation from the diredt 
 courfe of the voyage, mull annul the bargain. 
 
 In flating the different adjudged cafes which 
 illuftrate thefe pofitions, we may take thofe firft 
 in order, the principle of which is moft obvious ; 
 proceeding to others that may appear more dif- 
 putable. 
 
 And here little doubt can be entertained, that 
 the infurer muft be liberated, where there is a 
 prolongation or increafe of the rifk run above that 
 held out by the policy. As in the following de- 
 cifion. 
 
 Chitty 'V. Selwyn. 
 
 If a fhip be infured " at and from a place," 
 while it lies at that place, preparing for the 
 voyage infured, the underwriter is liable ; but if 
 the voyage be laid afide, and the fhip lies bye 
 with the owner's privity, for five, fix, or feven 
 
 years,
 
 Alteration. — Deviation. 395 
 
 years, the infurer is not liable. 2. Atkyns. 
 — Trin. 1742. 
 
 In the fame manner where the velTel adopts a 
 new fcheme of trade, or of advantage of any 
 fort, different from what was the original objedl 
 of the adventure. 
 
 Cock v. Townson. 
 
 The fhip George was bound from Corke to Ja- 
 maica, without a convoy, in the laft war. The 
 captain, in concert with two other velTels, took 
 the advantage of the night, and, being Ihips of 
 force, cruifed, and thereby deviated out of the di- 
 red courfe of their voyage, in hopes of a prize. 
 Lord Camden and the jury held, that, from the 
 moment the George deferted or deviated from the 
 dire6l voyage to Jamaica, the policy was dif- 
 charged. In C. B, 
 
 Or, where a vefTel, inltead of being infured 
 from one fpecified port to another, is infured to 
 a market, Ihe is bound to profecute this objeft of 
 her deflination, as direElly as pojfible. She can- 
 not enter upon any other purfuit, fo as to pro- 
 trad the adventure at the rifk of the infurers. 
 Such proceeding is analogous to touching at a 
 port not fpecified, and vacates the policy, 
 
 Marshall, Hamilton, and Co. againjl Craw- 
 ford, Barns, and others. 
 In April 1784, the purfuers, merchants in 
 
 Greenock^ fitted out the Ihip Ceres, Jamie/on 
 
 mailer,
 
 396 Insurance Contract, how dissolved. 
 
 mafter, upon a voyage to Newfoundland, and 
 the Weft Indies. When fhe failed from Clyde, 
 flie had on board 206 carts of coals, 20 barrels, 
 and 40 firkins of beef, befide fome dry goods, 
 the property of the captain. Mr Jamiefon was 
 inltruded to take on board, at Newfoundland, 
 about 300 cafks oijijh, and with his whole cargo 
 to proceed to the Weft Indies. In the inftruc- 
 tions it was added, '.Vour great objed for the 
 ^y Ceres, is, that Ihe arrive in t\i^ IVeJi Indies, 
 ** fo as to take in a cargo for Britain, &c. — If 
 *^ on your arrival at Barbadoes, Mr Thomfon 
 ** gives you affurance of 2l freight at any of the 
 " neighbouring illands, you will immediately 
 -f^i proceed there, and engage one if poffible, to 
 "any port in St George^ sChafinel, or even to 
 ^* Brijlol; fhould you meet with no encouragement 
 *' there, you will then proceed to Morant bay, Ja- 
 " maica, leave the fhip immediately yourfelf, and 
 " wait upon Mejfrs Maclean and Muir, at King- 
 *'*^Jlon, and Mejfrs Francis King and Co. Manchi- 
 ''^ ?ieal, and endeavour to feciire a freight for the 
 <* fhip, on the beft terms poffible." 
 
 The owners having received advice of the 
 fafe arrival of their velTel at Newfoundland, on 
 the 3d July 1784, opened a policy at Greenock 
 " onJJAp and freight, at and from Newfoundland, 
 " until fhe arrives at her port or ports of difcharge 
 ** in the Wejl Indies, and is there 24 hours fafely 
 ** moored. And the rifk on the freight to con- 
 '* tinue until the cargo is there fafely difcharged:" 
 
 <* After
 
 Alteration. — Deviation. 397 
 
 " After the rate of one guinea and a half />^rX.. 100 
 " Sterling, and one guinea per L. 100 additional, 
 ** if the Jhip Jhall proceed to Jamaica.^'' 
 
 Afterwards, on the 2 2d of July, they opened 
 ** another policy 2iX.Glafgow, *' on thtjhip Ceres, 
 " alfo on fijhy per faid Ceres, at and from New- 
 " foundland, until the veflel fliall arrive at a 
 " market in the JVeJl Indies, with liberty to pro- 
 " ceedto Jamaica, and there he fafely moored, and 
 ^^faidfifi landed, at two guineas ^^r cent,; with 
 " ont per cent, additional, if the vejjel Jhall pro- 
 ** ceed to Jamaica.'''* 
 
 From the proteft and evidence of the captain, 
 it appeared, that the velTel had arrived in fafety 
 in the Wejl Indies, and difpofed of all her fijh 
 at Barbadoes, Doininique and Martinique. That 
 had the captain been to load at any of thefe 
 Iflands, he could have fold his coals ; but that he 
 had been inftrucled to carry his coals to the port 
 of loading for the homeward voyage. That he 
 had no ballad, nor had he taken in any at New- 
 foundland. The coals and beef had both been 
 configned to the mailer, for fale, by the Compa- 
 ny's factor at Newfoundland : 
 
 That the captain fought for a freight at Bar- 
 badoes a?id Dominique, without fuccefs ; touched 
 at St Kitts, with the fame view, after he had 
 difpofed of his filh ;- and proceeded to Morant- 
 bay, Jamaica, where he arrived on the 23d of 
 July, having ftill on board the coals, and about 
 half of the beef. The velfel was moored with 
 
 D d d three
 
 398 Insurance Contract, how dissolveDo 
 
 three anchors. The captain left her, and went 
 to Kingjlon, to receive further orders with re- 
 fped to his port of loading ; and returned two 
 days after, having been informed, that it would 
 probably be ManchineaL The veflel continued 
 moored at Moraiit-bay^ for feven days, and on 
 the 30th July was wrecked in a hurricane. 
 
 The infurers on fiip, both at Greenock and 
 Glajgow, refufed to pay the lofs, upon this ground, 
 that the rifk infured was at an end before the ac- 
 cident happened, the veflel having landed her 
 fi/b, and having been more than 24 hours fafely 
 moored at Jamaica. But the Judge-admiral re- 
 pelled the defence. 
 
 The queflion having come by fufpenfion be- 
 fore the Court of Seflion, it was argued by the 
 aflured, — that an infurance to ports of difcharge^ 
 or to a market^ muft extend until the veflel ar- 
 rive at her laji market, or laji port of difcharge* 
 In this cafe, the veflTel being infured until fafely 
 moored at Jamaica, muft be underftood, confift- 
 ently with the general object of the adventure, 
 to mean, at a market in Jamaica. That when the 
 veflel was loft, flie had her coals, and part of her 
 beef, on board, which ftie was not to difcharge at 
 Morant-hay, but at the port of loading for the 
 homeward voyage. 
 
 For the underwriters it was argued, i/?, That 
 Jamaica, in the expreflion of thefe policies, par- 
 ticularly in the Glafgow one, is contrafted with 
 
 IVefl
 
 Alteration. — Deviation. 399 
 
 Weft Indies ; and confequently, although the 
 veffel was infured to a market among xh^fmaller 
 Weft India ijlands, yet her liberty to proceed to 
 Jamaica^ implied nothing more than a common 
 adventure between two fpecified ports. 
 
 And when a veffel is infured to any country, 
 kingdom, or ifland, g'enerally, the infurance is 
 underflood to terminate at the firft port in that 
 country, l^c. which the fliip makes*. 
 
 idlyy That (lie had difpofed of her cargo be- 
 fore going to Jamaica. That the fijh was her 
 
 only 
 
 * The following cafe was omitted under its proper head, 
 — Termination of Ri/k. It illuftrates the pufition laft flated : 
 Camden t;. Cowley. — Eajl^ 3. Geo. III. A6lion on a poli- 
 cy of infurance, on a Jl:iip, at and from Jamaica to London. 
 The fhip was alfo infured from London to Jamaica generally, 
 and was loft in coafting the ifland, after (lie had touched for 
 fonie days at one port there, but before flie had delivered all 
 her outward bound cargo at the other ports of the ifland. 
 
 In order to fhew when the homeward bound rifle commen- 
 ced, it was neceflary to fliow at -what time the outward 
 bound nfli determined j and to prove, whether, by the cu- 
 flom of merchants, the outward bound rifle determined, 
 when the ftiip arrived, and nioored 24 hours in any port of 
 the ifland, (as the plaintiff, in the prefent caufe, contended,) 
 or when flie had been fafe 24 hours in her lajl port of deli- 
 very. 
 
 Lord Mansfield, Chief Jufticc, ruled, that infurance- 
 brokers and others might be examined, as to the general 
 opinion and underi^anding of the perfons concerned in the 
 trade, though they knew no particular inftance in fa6t, upon 
 ■which fuch opinion was founded. A fpecial jury found a 
 verdift for the plaintiff; and the Court afterwards refufcd 
 a new trial. Blackjl. Rep, 417.
 
 400 Insurance Contract, how dissolveb. 
 
 only cargo ; and the beef and coals were not to 
 be confidered in that view ; but as having been 
 kept on board for ballaft, and fhip's proviiions. 
 1h.Q.Ji/b was the only cargo mentioned in the po- 
 licy, or infured ; and no claim had been at- 
 tempted for t\it freight of the beef and coals. 
 
 3^?/^, The vefTel had deviated, by protradling 
 the rijk. The veflel was infured to a markety 
 and the captain, inftead of going diredllyto that 
 market, had gone out of his way in fearch of a 
 freight homeward. He had negleded to take ad- 
 vantage of a market which offered in the Wejl In- 
 dies ; in failing to -5"^ Kitts^ and in the delay at Mo- 
 rant bay, he had made the fale of the cargo (which 
 was the object of the voyage infured) fubfervi- 
 ent to a different fcheme, of procuring a home- 
 ward freight, with which the underwriters were 
 nowife concerned. The Ihip was infured to a 
 market, and not till fhe could procure a freight. 
 
 The Court of Seflion almofl unanimouHy gave 
 judgment for the infurers, although the judges 
 did not feem to be fully agreed upon the grounds 
 of the decifion. But, upon a reclaiming petition 
 for the affured, and anfwers, they were unani- 
 mous upon the third point, that the affured had 
 varied the rifk ; Siud ih^y adhered. Nov. 1786. 
 —CoUededfrom the printed papers. 
 
 Not only is the affured prohibited from in-, 
 creafing the rifk, but even from altering it in any 
 particular. It is not necelfary for the under- 
 writer
 
 Alteration — Deviation. 401 
 
 writer to Ihow, that he is a lofer b^ tne devia- 
 tion ; the hazard not only muft not be augment- 
 ed, but it muft be the fame that was underta- 
 ken. The reafons of this were formerly point- 
 ed out ; that an infurance is a fpecies of wager, 
 which does not admit of equivalents, but requires 
 a fpecific performance ; and that a contrary 
 rule w^ould open a door to fraudulent encroach- 
 ments by the alTured, upon the underwriter, 
 which the latter could feldom have it in his 
 power to detedt. 
 
 Fox v. Black. 
 
 The plaintiff was a fliipper of goods in a vef- 
 fel bound from Dartmouth to Liverpool. 'Ihe 
 ihip failed from Dartmouth, and put into Zoo, 
 (a place fhe muft of neceffity pafs,) in the courfe 
 of her infured voyage. But as fhe had not li- 
 berty, by the policy, to go to Loo; and al- 
 though fhe fuffered no damage in going into, or 
 coming out of Loo, (for fhe was loft after fhe 
 got to fea again), yet this was held to be a de- 
 viation ; and a verdict was found for the under- 
 writer. — At Exeter jijjl I'jGy. Before Sir Jos. 
 Yates *. 
 
 But the moft remarkable adjudged cafe, upon 
 the fubjecl of deviation, and which is dccifive 
 of this, as well as a variety of other points, is 
 that of Wilfon and Co. againjl Elliot, 
 
 The 
 
 * This judgment was firfl: produced and appealed to in 
 Sfevens & Co. v. Douglas, beiore tiie C. of Seilion.
 
 402 Insurance Contract, how dissolved. 
 
 The Ihip Kingjlon was infured " from Carron 
 *' to Hull, with liberty to call at Leitb:' She 
 called at Morifori's Haven^ about fix miles from 
 Leith ; afterwards returned in fafety into the 
 original track of the voyage, but was loft, a few 
 days after, off the coaft of Northumberland. 
 The Court of Seffion found, that there was no 
 deviation, for this, among other reafons, that it 
 did not appear the underwriters had fuffered a 
 prejudice. But the Houfe of Peers reverfed that 
 judgment *. 
 
 The following cafe was originally produced 
 and appealed to in the queftion Wilfon againjl El- 
 liot^ before the Court of Seffion. It is without a 
 date ; and there is fome ground to fufped, in- 
 completely ftated. But, as it has been frequent- 
 ly quoted in the Scotch Courts, to fupport very 
 different opinions from what we have ventured 
 to maintain, it feems to have fufncient demerit 
 to deferve infertion, in the fame ftate in which 
 we find it. 
 
 Hog and Kinloch v. Bogle and Scott. 
 
 A fhip lying in the harbour of Dundee^ was 
 freighted to carry a cargo of lead from Leith to 
 Campvere, and infured ^^from the frith ofFortV 
 to that port. A freight in the mean time came 
 in the way, from where fhe then lay {Dundee J, 
 
 to 
 
 * This cafe fhall be fully ftated on a future occafion. 
 See below eJusfeSio
 
 Alteration. — Deviation. 403 
 
 to Campvere^ v^^hich fhe agreed to take, and give 
 up the other, viz. that from Leith ; the policy 
 was not altered, either from inattention, or that 
 they conlidered it in no way material, whether 
 the veffel failed from the frith of Tay or Forth, 
 as the port of deftination (Campvere) was the 
 fame in both cafes. The fhip was loft in her 
 way out, and the matter ifTued in a law-fuit be- 
 fore the Court of King's Bench. — The under- 
 writers argued, that they could not be made 
 liable, as thejlnp had not failed from the frith of 
 Forth, as fpecified in the policy. Lord Mans- 
 field delired to know what courfe the velTel 
 fteered from Dundee, and particularly, whether 
 fhe had come fafe into the courfe, which is in 
 general taken from the frith of Forth. It was 
 proved, by the oaths of five witnelTes, that the 
 fhip came even with the precinct of the frith of 
 Forth, being two miles off the ille of May, and 
 fo continued in the very fame courfe as if fhe 
 had come from Leith, or any other port withirt 
 the frith of Forth, for Campvere. — Lord Mans- 
 FiELi> fuid, that that made the matter very clear. 
 Had the velTel been loft between the frith of Tay 
 and the ifle of May, the infurers could not be 
 liable ; but having come in fafety into the 
 courfe taken in general by fliips going from the 
 frith of Forth, the place from which the infu- 
 rance commenced, no matter from whence fhe 
 came prior to that, the underwriters were un- 
 
 queftionably
 
 404 Insurance Contract, how pissolved, 
 
 queftionably liable ; and he doubted not, but 
 the jury would find it fo; which they accor- 
 dingly did. 
 
 This judgment has in Scotland been founded 
 on, in favour of a general, extenfive interpre- 
 tation of the policy : and in particular to fhow, 
 that a deviation is not effedtual to vacate the 
 contrad, unlefs a lofs has happened in confequence 
 of it. But this application of the decilion is, 
 with fubmiflion, erroneous. The queftion here 
 appears to have been, whether parties in the in- 
 furance had any view to the particular period of 
 the voyage at which the infurance was to commence ; 
 whether they meant, that the adventure was to 
 commence like the inlurance, ** from the frith 
 *' of Forth." Lord Mansfield thought there 
 was no evidence that fuch a reftridion was 
 meant ; it does not appear from the words of the 
 policy. It is to be wifhed, however, the cafe 
 had been more fully reported, and upon better 
 authority. 
 
 At the fame time that it feems eftablifhed in 
 Britain, by repeated decifions, as well as found- 
 ed on folid principles, that the infurer fhall 
 not be obliged to Ihew a prejudice ari- 
 Itng from any breach of the policy, yet it mull 
 be acknowledged, that it will not be eafy to re- 
 concile this do6lrine with many of the foreign 
 
 mercantile regulations. 
 
 3. When
 
 Alteration. — Deviation. 405 
 
 3. When it is faid, that the veflel mufl follow 
 the dired line of voyage, between the ports and 
 places pointed out in the contrad, and the pre- 
 cife plan of the adventure, this expreffion re- 
 quires fome explanation. The direSl line of 
 voyage mull be followed only fo far as circum- 
 ftances will permit. 
 
 If the veflel fhould be driven out of her dired 
 courfe by unavoidable accident ; by winds and 
 feas ; or if the rifk fhould be protraded by an 
 embargo, this will not infer a deviation : The 
 infurer takes upon himfelf all fuch accidents, 
 and their confequences : The variation is a mat- 
 ter of neceflity. 
 
 But it is not a phyfical neceflity alone, that 
 will juftify a variation from the dired courfe 
 of the voyage. If the mafter alters his pro- 
 pofed route, from a reafonable apprehenfion 
 of enemies, or pirates ; of a fliipwreck, or 
 an embargo ; or of any other accident equally 
 fatal to the adventure ; the meafure is in fad; 
 a matter of neceflity, as much as if it had ori- 
 ginated from the violence of winds or waves. 
 
 " If," faysRoccus, " afhip alters its courfe, or 
 " deviates from the dired track of its voyage, 
 " the infurer is no longer bound, unlefs indeed 
 " the mafl:er alters his courfe, from motives of 
 " neceflity, fuch as to refit his veflel, efcape 
 " a ftorm, or to avoid an enemy ; in which 
 •* cafes, notwithftanding the alteration of the 
 
 E e e ** fliip's
 
 4i 
 it 
 
 <( 
 
 406 Insurance Contract, how dissolved. 
 
 " fhip's courfe, the infurers remain fully 
 ** bound*." 
 
 " Real and imminent danger of Ihipwreck,** 
 fay all the Commentators and foreign ordi- 
 nances, ^* or of ftranding, or falling into the 
 hands of enemies or pirates ; contrary winds, 
 dorms, a neceffity of obtaining a port to flop 
 a leak or repair damages ; thefe are juft and 
 ** reafonable caufes of deviating from the dired 
 *' courfe of the voyage f." 
 
 This apology, it mufl be obferved, for a de- 
 parture from the direct courfe of the voyage, is 
 very extenfive. It is extremely difficult, or ra- 
 ther impoffible to diftinguifh accurately between 
 what is abfolutely neceflary, and what is merely 
 expedient. And there feems no reafon, in this 
 inftance, for attempting to draw the line. The 
 mailer is, no doubt, in general, bound to adhere 
 to his inflrudions, and is faulty in departing 
 from the voyage infured. But wherever he can 
 ihow good reafon for having believed that the 
 variation would be of advantage to ail concern- 
 ed 5 wherever he a6ls ufefully for the adventure 
 at large ; the underwriters, in fuch a cafe, could 
 they have been applied to, would have exprefsly 
 authorifed the meafure ; and they cannot objed: 
 to a condu6l which the law conliders as founded 
 upon their tacit confent. It is fufficient to julli- 
 
 * Roccus, Not. 52. 
 
 t See Stracca, Kuricke, Cafariges, Valines. For. Ordino 
 pajim.
 
 Alteration. — Deviation. 407 
 
 fy a departure from the diredl courle of the voy- 
 age, not only that it be necej/ary, but that it be 
 ufeful to all concerned. 
 
 Upon principles perfedly limilar, no variation 
 from the direct courfe can be confidered as in- 
 ferring a breach of the policy, providing the 
 variation in queftion is agreeable to the received 
 2{fage of merchants and feamen, in fuch circum- 
 Itances. 
 
 For, in the frji place, the maxim holds, That 
 we ought to truft to every artift in his own pro- 
 feffion. The prefumption is, therefore, that the 
 line of voyage which is iifual^ is alfo moji pru- 
 dent and moll proper. The lliipmafter, who 
 fhould follow the received practice, would be 
 defeniible on the footing of having made a va- 
 riation that was ufefuL 
 
 But, idly, the contrad:ing parties muft be 
 fuppofed to know the pradlice, in the particular 
 adventure which is the fubjed of their agree- 
 ment, and to approve of it, for the reafon above 
 mentioned. Unlefs there be an exprefs llipu- 
 lation to the contrary, what can be proved to be 
 cujlomaryy muft be fuppofed to have their tacit 
 confent. 
 
 The aflured, therefore, may follow, not only 
 
 the direct, necejfary, or ufeful line of voyage, but 
 
 likewife that which is agreeable to common ufage. 
 
 The firft of thefe points, that a departure from 
 
 the policy is juftified by ncceffity, is perhaps too 
 
 clear to require illuftration. In the cafe Mot- 
 
 teux
 
 4o8 Insurance Contract, how dissolved. 
 
 teux V. L. Afs, Co. formerly quoted, the veffel 
 was infured '* at and from Fort St George to 
 London." And it was found, that under the 
 infurance at Fort St George, Ihe was at liberty 
 to go to Bengal, to make the neceflary repairs 
 for her homeward voyage. 
 
 In Guihert v. ReadJImw^ (reported by Mr 
 Park,) the Nancy was infured from Rochelle to 
 Africa. Three days after Ihe failed from Ro- 
 chelle, Ihe met with a gale which ftrained her 
 feams, and fplit her mizzen-yard and riggings. 
 The crew came in a body to the captain, de- 
 firing, for the prefervation of their lives, that he 
 would make to fome port to repair. The veffel 
 being a new one, and the captain finding Ihe 
 had too little ballaft, complied, and put into 
 Lilbon, the neareft port ; from whence, after 
 taking in ballaft, he proceeded on the voyage. 
 It was found that this was no deviation *. 
 
 The cafe of Grahame and Coulter againfl Mac- 
 nair, an appeal from Scotland, in which a 
 ftiip infured " from Virginia to Barbadoes,''* had 
 been wrecked among the Bermudas, turned 
 upon certain points of evidence, whether Ber- 
 mudas was in the direct line of the voyage, or 
 near it ; and how far any departure from the 
 dired courfe had been voluntary, or the effed 
 of ftormy weather. Appealed Cafes, 2gth March 
 
 1770. ■ 
 
 It 
 
 * Hi7. Vac. 1 78 1. Park's Syftem.
 
 Alteration. — Deviation. 409 
 
 It has been found, however, that where a 
 fhipmafter is conilrained by necelhty to leave 
 the direct courfe of the voyage, he mujl follow 
 the voyage of neceffity as diredlly as poflible, 
 and execute it in the fliortell and mofl expedi- 
 tious manner. 
 
 Lavabre a^aifift WiLSOify a/id h ay abke againjl 
 Walter. 
 
 Thefe cafes were aflions on the fame policy of 
 infurance, on the Carnatic, a French Eafl India- 
 man. The voyage was defcribed in the follow- 
 ing words, " at and from port VOrient to Pondi- 
 " cherry^ Madras and China^ and at and from 
 " thence, back to the (hip's port or ports of dif- 
 " charge in France, withli berty to touch, in the 
 " outward or homeward bound voyage, at the 
 " iiles of France and Bourhony and at all or any 
 " other place or places what or where foever." 
 And there was this additional claufe in a fubfe- 
 quent part of the policy, viz. ** And it fliall be 
 " lawful for the faid lliip in this voyage, to pro- 
 " ceed and fail to, and touch or flay at any ports 
 " or places whatfoever, as well on this fide, as on 
 " the other fide of the Cape of Good Hope^ without 
 *' being deemed a deviation." 
 
 The Ihip reached Pondicherry on the 23d of 
 July 1777. She continued there till the 23d of 
 Auguft following ; when, inftead of proceeding 
 to China, ftie failed for Bengal', where, having 
 pafled the winter, and undergone very confidcr- 
 
 able
 
 410 Insurance Contract, how dissolved, 
 
 able repairs, llie failed from thence early in the 
 year 1778, returned to Pondicberry, and, after 
 taking in a homeward bound cargo at that place, 
 proceeded in her voyage back to V Orient ; but 
 was taken in O6tober that year by the Mentor 
 privateer. The dired; voyage between Pondi- 
 cberry and Bengal is ufually performed in fix 
 or feven days ; but the Carnatic was about fix 
 weeks in going to Bengal, and two months on 
 the way back from thence to Pondicberry, Both 
 going and returning, fhe either touched at, or 
 lay off, Madras, Majfulipatam, Vi/igapatam and 
 Tanony and took in goods at all thofe places. 
 
 The defence fet up was, that the voyage to 
 Bengal was not a part of the original adventure 
 intended ; and this was endeavoured to be pro- 
 ved by certain private inflrudions that had been 
 found aboard the Ihip, and which gave ftrong 
 reafon of fufpicion : At leaft the voyage from 
 Pondicberry to Bengal, inftead of proceeding to 
 Cbina, appeared to be a deviation. 
 
 The plaintiffs maintained, that, under the ge- 
 neral liberty given by the policy, of touching at 
 all places whatfoever, the vefTel might go to Ben- 
 gal, as well as to Cbina ^. Lord Mansfield, 
 however, having intimated a clear opinion, that 
 the general words were qualified and refl:rained 
 
 by 
 
 * Upon this point, the plaintiffs had feveral opinions of 
 Dutch and French lawyers in their favour. See a cafe in 
 Bynkerfjoek,
 
 Alteration. — Deviation. 411 
 
 by the expreflions ** in the outward or homeward 
 •* hound voyage,^'' and ** in this voyage,'* fo as to 
 mean all places whatfoever in the ufual conrfe 
 of the voyage to and from the places mejitioned in 
 the policy, — this ground was abandoned. The 
 alleged deviation was defended upon the footing 
 of neceffity, evidence being produced to Ihew, 
 that the veflel needed repairs, and that Bengal, 
 in the circumftances of the cafe, was the only 
 proper place for that purpofe. 
 
 Lord Mansfield, upon one of thefe cafes, 
 ftated a point of law againft the plaintiff, viz, 
 that if neceffity were admitted to have been the 
 fole motive for fubftituting the voyage to Bengal, 
 in place of that to China, ftill it was incumbent 
 on the aflured to have purfued that voyage of ne- 
 ceffity directly, in the fhorteft and moft expedi- 
 tious manner ; and that the delay in going from 
 Pondicherry to Bengal, and the repeated flops by 
 touching at different places, and trading there, 
 were deviations, and not within the protedion, 
 which the fuppofed neceffity afforded to the in- 
 dired: voyage. 
 
 The jury, in both cafes, found a verdidl for 
 the plaintiff. But upon motion for a new trial, 
 the Court being clear, that the queflion was ill 
 decided, the plaintiff fubmitted. Douglas's Re- 
 ports, igth November 1779 *. 
 
 That 
 
 * There was another cafe, Bi^e againjl Fletcher, founded 
 upon a difierent policy on the fame lliip. In this policy the 
 
 latitude
 
 412 Insurance Contract, how dissolved. 
 
 That expediency is fufficient to excufe a de- 
 parture from the diredl courfe of the voyage, may 
 likewife be illuflrated by a variety of explicit 
 decilions in the Br'itijh courts *. 
 
 Delancey and another againjl Stoddart. 
 
 This was an adion at the inftance of a mer- 
 chant in the Weft Indies^ againft his correfpond- 
 ent in England, for negleding to obey his in- 
 llrudlions with regard to infuring a veflel, " the 
 " Friendjhip, in a voyage at and from St Kitts to 
 " London^ warranted with convoy.'* 
 
 The cafe turned, in a great meafure, upon a 
 queftion of fa£t, what were the plaintiff's inftruc- 
 tions, and how far the defendant had undertaken 
 to execute them. But a point of law occurred, 
 whether the owner had not varied from the de- 
 llined voyage ? 
 
 The jury having found a verdi6l for the plain- 
 tiff, the fads relating to this point, as flated by 
 Mr Juftice Buller, upon motion for a new trial, 
 were in fubftance as follows : 
 
 The Ihip had been lying at St Kitts, and, on 
 or before the 3d July 1781, had left port to 
 take in her cargo. She let go an anchor at Sandy^ 
 
 point ; 
 
 latitude given of failing to different ports, was not confined 
 in its interpretation by any claufes fimilar to thofe laid hold 
 of by Lord Mansfield in the cafe of Lavabre v. Wilfon. 
 And a verdidl; of the jury in favour of the plaintiffs was ac- 
 quiefced in by the defendant. See Douglas's Reports. 
 
 * See a foreign cafe on the fame fubjed. Rocc. Refp. 50.
 
 Alteration. — Deviation. 413 
 
 point ; but as the wind blew freih, flie drove out, 
 and could not come in again. She was obliged 
 to bear away for St Eujlatius ; and, after making 
 feveral efforts to return to -5"/ Kitts^ without ef- 
 fed, it was judged expedient, that flie lliould fi- 
 nifh her loading at St Eujlatius ; and the plaintiff 
 fold her to a Mr Rofs. She afterwards failed with 
 the convoy on ift Auguli, and foundered at fea. 
 
 It appeared that St Eujlatius is in the direct road 
 to London from St Kitts ; and the convoy always 
 looked into that port to take up any fhips that 
 might be there. That if the Friendjlnp had fail- 
 ed to St Kitts, fhe mull have gone by iS*^ Eujla- 
 tius, but would not have (lopped there. 
 
 Lord Mansfield. — If a ilorm drives a ffiip 
 out of her voyage, and fhe does the belt fhe can 
 to get to her port of deflination, fhe is not obliged 
 to return back to the point from which fhe was 
 driven ; but here, the witneffes fay, fhe tried to 
 get back to St Kitts, but could not ; and it is 
 eafier to go diredlly from St Eullatius to London, 
 than to go back to St Kitts firft. No time was 
 loft by taking in the cargo at St Euftatius. Every 
 thing here was the effed of the ftorm. 
 
 WiLLES, J. — The cafe is difficult. The vef- 
 fel, when driven to St Euftatius, inftead of going 
 on direclly to London, ftays fome time to take in 
 a new cargo. The veffel is fold, and loaded 
 with tobacco, inftead of fugar, which was to 
 have been her original cargo. So that there is 
 
 Fff a
 
 4t*4 Insurance Contract, how dissolved, 
 
 a new owner, a new cargo, and a new 'voyage. 
 'Doubtful whether the jury had fufficient evi- 
 dence before them. The verdid ought to be 
 recorifidered. 
 
 As HURST, J. — This was all one voyage, being 
 the efFeft of the ftorm. The veflel might have 
 gone back to St Kitts to finilh her loading ; but 
 it was better for all parties flie fhould finifh it at 
 St Euflatia. 
 
 BuLLER, J. — It was diminifhing the riik to 
 finifh the loading at St Eullatia. Befides, the 
 evidence fays, it is ufual, where a captain has not 
 got a full loading at St Kitts, to take in the rell 
 at St Eullatia. If, therefore, the policy would 
 have protected the fhip, during a voluntary ftay 
 at St Euflatia, to finifh the loading, a fortiori it 
 will do fo, when the fhip was driven by flrefs of 
 weather. Rule difcharged. — rTermly Reports, 
 Mich. 1785, 
 
 DuNLOP againjl Allan. 
 
 In the beginning of the year 1781, Hugh 
 Dunlop fhippcd a quantity of goods on board 
 the Cajilefemplcy belonging to Alexander Houjlon 
 and Company of Glafgow, for St Kitts. The goods 
 were infured by Richard Allan, '* from the load- 
 ?* ing thereof in Clyde, until they fhall arrive 
 f* at St Kitts, and there be fafely landed." 
 
 When the vefTel arrived, on the 9th of March 
 1781, in the neighbourhood of St Chriftopher's, 
 
 the
 
 Alteration.— DEiriATioNi 415 
 
 tiie cap^ain received information, that the ifland 
 was in the pofleflion of the French. He under- 
 ftood, at the fame time, that, by the terms of 
 capitulation, goods deftined for that ifland might 
 ftill be landed there ; but that the refl of the 
 cargo (which was deftined for Jamaica) and the 
 fhip herfelf, would be liable to feizure. He 
 therefore landed Mr Bunlap^s goods at Antigua^ 
 from which they might be tranfmitted to St 
 Kitts ; and he proceeded with the greateft part 
 of the cargo to Jamaica. The goods landed at 
 Antigua were foon after confumed by an acci- 
 dental fire. 
 
 Mr Dunlop, the fliipper, purfued Mr AUan^ the 
 infurer, for the lofs, before the Court of Admiral- 
 ty. — The infurer defended himfelf upon the plea 
 Cii deviation ; but the Judge-admival repelled the 
 defence. 
 
 The caufe having been brought before the 
 Court of Seffion, it was argued for the infurer, 
 that this deviation from the infured voyage to 
 St Kitts, by landing the goods at Antigua, was 
 not necfjfary nor ufeful to that part of the adven- 
 ture, with which the underwriter was concerned. 
 As to him, therefore, that ftep of the maftcr muft 
 be confidered as a voluntary deviation^ and mull 
 vacate the policy. At leaft the infurer if he be fub- 
 jeded, (hould,at the fame time, be found entitled 
 torecourfeagainft^/<?A'fl«^/<fr//c«/?o» and Co. who 
 had reaped an advantage, in the prefervation of 
 
 their
 
 4i6 Insurance Contr.act, how dissolveq, 
 
 their fhip and cargo, by that very meafure which 
 had produced a confequential prejudice to the 
 infurer. 
 
 The Court approved of the determination of 
 the Judge-admiral, which was in thefe words ; 
 " Repels the defences, finds the defender liable 
 " in the fums fued for ; referving to him his re- 
 " courfe againfl; the perfons by whofe condudl 
 " he has been made liable." Fac. Colled, i^tb 
 November 1785. 
 
 A change ofjhip is precifely in the fame iitu- 
 ation with a departure from the direSi courfe of 
 the voyage ; and it mull be juftified by the fame 
 reafons of neceffity, utility, or cullom, which ex- 
 cufe any other variation of the rifk. In the fol- 
 lowing cafe, we have an example of neceffity 
 juftifying the original departure from the policy, 
 and expediency, thofe meafures which were 
 taken in confequence of that departure. 
 
 Plantamour againjl Staples. 
 
 The defendant infured the plaintiff, *' on the 
 
 " Ihip Bur as, at and from Marfeilles to Madeira, 
 
 " the Cape, Ifles of France, &c. and all ports, &c. 
 
 *' in the Eaft Indies, Perfia, and elfewhere be- 
 
 " yond the Cape of Good Hope, from place to 
 
 " place during her ftay and trade there, and un- 
 
 *' til her fafe arrival back at her laft port of dif- 
 
 " charge in France, upon any kind of goods, 
 
 «' and alfo on the body, 6tc. of faid ihip." 
 
 A
 
 Alteration. — Deviation. 417 
 
 A verdid was found for the plaintiff, fubjed 
 to the opinion of the Court on the following 
 cafe. 
 
 That the plaintiffs were interefled in bullion 
 and goods, fhipped on board the Duras, confign- 
 ed to correfpondents in Pondicherry, with in- 
 ftrudlions to barter the fame, and to make re- 
 turns in Indian produce. The plaintiffs were 
 likewife interefled in the fhip, which was lofl at 
 the Ifle of France. A great part of the bullion, 
 and fome of the goods, (but damaged), were 
 faved from the wreck, and, without any autho- 
 rity from the underwriters, were fent forward in 
 another fhip to Pondicherry, where they were 
 fold, and the returns in India manufadure fhip- 
 ped on board another veffel, the Pere de Famille^ 
 which failed in Augufl 1778 for France. The 
 Pere de Famille was condemned at the Ifle of 
 France, as unfit for the voyage ; and the plain- 
 tiffs goods put on board another fliip, the Louifa 
 El'ifabeth, which was captured by an Englifli 
 privateer, and condemned as a prize. 
 
 On the 29th Augufl 1778, feveral of the un- 
 derwriters agreed to run the rifle on the goods 
 faved, in any other fliip, till their fafe arrival in 
 France. The defendant, and others, rcfufed 
 this ; but paid the average lofs on the Duras. 
 ^ejiion. Whether the defendant is obliged to 
 pay the lofs fuflaiiied by the capture and con- 
 demnation
 
 4i8 Insurance Contract, how dissolved. 
 
 demnation of the ihip Elifabethy and her cargo? 
 if not, whether the plaintiffs are entitled to any, 
 and what return of premium ? Lord Mans- 
 field. There is not a particle of doubt. The 
 beft that could be done, was done. The fhip- 
 ping at Pondicherry is admitted to have been 
 necelTary ; the goods mull come back in the bell 
 way ; — this was the beft. — The policy is proper- 
 ly worded, and the underwriters liable. 
 
 Buller, J. — The cafe of Mills v. Fletcher, is 
 very applicable, which determines generally, 
 that the captain has a power to do every thing 
 for the good of all concerned. And here the 
 objecft was trade. The pojlea to be delivered to 
 the plaintiff. Mich, 22. Geo, III. MS, 
 
 With regard to the effed: of Ufage, in explain- 
 ing the meaning of parties in the policy, the ad- 
 judged cafes of the Englilh courts are volumi- 
 nous. 
 
 Salisbury v, Townson. 
 
 A Ihip infured from Liverpool to Jamaica, put 
 into Douglas Bay in the ifle of Man. It appear- 
 ed that there were fome inftances of the Liver- 
 pool fhips putting in there, but it was not the 
 fettled, ejidblifhed, common, nor dire6i courfe of 
 the voyage and trade ; therefore it was held a 
 deviation, and difcharged the underwriters from 
 
 any
 
 Alteration. — Deviation. 419 
 
 any lofs that happened fubfequent to the devia- 
 tion *. 
 
 Felly v. Royal Exch. Ass. Co. 
 
 The plaintiff infured the ihip On/low from 
 London to any ports and places beyond the Cape 
 of Good Hope, and back to London, and until 
 moored for twenty-four hours in the river 
 Thames. 
 
 The Ihip failed the 27th December 1753, up- 
 on a voyage to China, and arrived at Canton ; 
 where the captain took out the fails and tackle, 
 in order to refit his fhip, and laid them up in 
 a bank faul, upon an illand called Bank-faul 
 IJland^ where they were foon after dellroyed by 
 an accidental fire. It appeared to be the uni- 
 verfal cuflom for all {hips in the China trade 
 to do fo ; that the liberty of doing this was con- 
 fidered as a great advantage, from which the 
 Dutch were the only nation excluded. Thefe 
 fad:s were found by the jury, fubjedl to the 
 opinion of the Court, whether the policy infured 
 againil this accident. 
 
 Lord Mansfield, after taking time to ad- 
 vife, delivered the opinion of the Court. By the 
 cxprefs words of the policy, the defendants 
 have infured the tackle, apparel, and other fur- 
 niture of the Hiip OnJIow from fire during the 
 
 whole 
 
 * Appealed to in the cafe of Stevens & Co. v. Douglas, 
 before the Court of Seffion, and rccognifed by EngllHi 
 7?fitcrs.
 
 420 Insurance Contract, how dissolved. 
 
 whole of her voyage, without any reflridlion. 
 Her tackle was burnt in China, during the 
 voyage. The event therefore is within the ge- 
 neral words of the policy, and it is incumbent 
 on the defendants to lliow, from the manner in 
 which the misfortune happened, that it was not 
 one of the perils undertaken. 
 
 A rational fyllem of conilrudion has been 
 adopted of the ancient inaccurate form pf words, 
 in which this contfadl is expreffed ; this mult be 
 the lame among all mercantile nations. 
 , If the rilk is varied through the fault of the 
 aflured, or mafter of the Ihip, the underwriter 
 is freed. But the mafter is not in fault, if what 
 he did, was done in the ufual courfe, or necelTa- . 
 rily ex jujla caiifa. 
 
 The infurer, in eftimating the price at which 
 he is willing to indemnify the trader againft all 
 rifks, muft have under his conlideration, the na- 
 ture of the voyage to be performed, and the ufual 
 courfe and manner of doing it. Every thing done 
 in the ufual courfe muft have been forefeen, and 
 in contemplation, at the time he engaged. He 
 took the rifk upon a fuppofition, that what was 
 ufual or neceffary would be done. 
 
 It is abfurd to fuppofe, when the end is infured, 
 that the ufual means of attaining it, are meant 
 to be excluded. Therefore, when the goods are 
 infured " till landed," without exprefs words, the 
 infurance extends. to the boat, the ufual method- 
 
 of
 
 Alteration. — Deviation. 421 
 
 of landing goods upon fhore. If it is ufual to 
 Hay fo long at a port, or to go out of the dircd 
 way, the infurer is confidered as underftanding 
 that ufage. Bond v. Gonfaks, 1. Salk. 443, was 
 fo ruled by Lord Chief Jujlice Holt. If goods 
 are infured on board one fhip to a port, and 
 from thence on board another ftiip, the firft 
 that can be got ; the infurance extends through 
 all the intermediate fteps of removing from 
 one fhip to the other, as ufual. For the means 
 mud be taken to be infured, as well as the 
 end. 
 
 All this was determined in the cafe Tierney 
 V. Etheririgton, quoted by the plaintiff, (circum- 
 fiances of that cafe ftated.) — What is ufual in 
 any adventure, is underltood to be referred to, 
 as much as if exprefTed. 
 
 The only objedlion is, that they were burnt 
 upon a bank-faul, and not in the fhip ; upon 
 land, and not in the fea. But many accidents 
 might happen at land, even to the fhip. It might 
 be burnt while repairing in a dry dock. 
 
 This had been improperly compared to a de- 
 viation. For the infurance being to China^ the 
 reparation at Canton, and the circumftances at- 
 tending it, mufl have been forefeen by the par- 
 ties. 
 
 ^er cur. Judgment for the plaintiff, i. Burr* 
 23^ May 1757. 
 
 G g g TiEHNEy
 
 422 Insurance Contract, how DissoLvzn, 
 
 TiERNEY V, EtHERINGTON. 
 
 In delivering the opinion of the Court, in the 
 cafe, Pelly v. R. Excb. Aff. Co. Lord Mansfield 
 Hated the cafe of Tierney v. Etherington^ as fol- 
 lows: 
 
 That was an infurance on goods in a Butch 
 lliip, from Malaga to Gibraltar^ and at and from 
 thence to England and Holland^ both or either 
 beginning the adventure from the loading, and 
 to continue till the fhip and goods be arrived in 
 England or Holland, and the goods there fafely 
 landed. 
 
 The agreement was, " That, upon the ar- 
 ** rival of the fhip at Gibraltar, the goods might 
 *« be unloaded, and refhipped in one or more 
 " Britijh fhip or fhips, for England and Holland, 
 ** and to return one per cent, if difcharged in 
 " England:' 
 
 It appeared on evidence, that when the fhip 
 came to Gibraltar, the goods were unloaded, and 
 put into a flore-fliip, (which, it was proved, was 
 always confidered as a warehoufe ;) and that 
 there was then no Briti/fj fhip there. Two days 
 after the goods had been put into this ftore-fhip, 
 they were lofl in a ftorm. 
 
 For the defendant it was argued," that the in- 
 furance was only upon the Dutch and Britifli 
 fhips ; and that it did not extend to the ftore- 
 fhip, which is confidered as a warehoufe at 
 
 land, and fo not a peril at fea. 
 
 For
 
 Alteration. — Deviation. 423 
 
 For the plaintiff it was infilled, that this was 
 a lofs in the voyage : The policy is, for all loffes 
 at Gibraltar, as well as to and from. If there 
 had been a Britilli Ihip there, and the goods had 
 been put into a lighter, in order to go to a Bri- 
 tifh fhip, and had been loft in the way, that 
 would have been a lofs within the policy. We 
 have liberty to unload and refhip ; and there- 
 fore have a liberty to ufe all means in order to 
 do that. 
 
 Lee, C. y. faid, — it is certain that, in the con- 
 ftruction of policies, ihtjlriclumjus or apex juris, 
 is not to be laid hold of : But they are to be 
 conftrucd largely, for the benefit of trade, and 
 for the infiired. Now it feems to be a ftridl 
 conftru6lion, to confine this infurance only to 
 the unloading and relhipping, and the acci- 
 dents attending that ad. The conftrudlion 
 Ihould be according to the courfe of trade in this 
 place. And this appears to be the ufual me- 
 thod of unloading and relliipping in that place : 
 viz. '* That when there is no Britifh (liip there, 
 ** then the goods are kept in ftore-fhips." 
 
 He added, that where there is an infurance 
 on goods on board fuch a fhip ; that infurance 
 extends to the carrying the goods to fiiore in a 
 boat. So if an infiarance be of goods to fuch 
 a city, and the goods are brought in fafety to 
 fuch a port, though diftant from the city, that 
 is a compliance with the policy, if that be the 
 yfiial place to which fhips come. 
 
 Therefore.
 
 42,4 Insurance Contract, how dissolved. 
 
 Therefore, as here is a liberty given of unload- 
 ing and refhipping, it mufl be taken to be an 
 infuring the goods under fuch methods as are 
 proper for the unloading and refhipping. Here 
 is no negle<5t on the part of the merchant (the 
 infured ;) for the goods were brought into port 
 the 19th, and were loft the 2 2d November. 
 
 This manner of unloading and refhipping is 
 to be confidered as the necefTary means of at- 
 taining that which was intended by the policy ; 
 and feems to be the fame as if it had happened 
 in the a6t of refhipping from one fhip to the 
 other. And as this is the known courfe of 
 trade, it feems extraordinary if it was not in- 
 tended. 
 
 This is not to be confidered as a fufpenfion of 
 the policy, during the unloading and refhipping 
 from one fhip to another. For as the policy 
 would extend to a lofs happening in the un- 
 loading and refhipping from one fhip to ano- 
 ther; fo any means to attain that end, come 
 within the meaning of the policy. 
 
 And accordingly a verdid was given for the 
 plaintiff. 
 
 In the Eafter term following, a new trial was 
 moved for : But it was refufed by Lord C, J. 
 Lee, Mr Jujl. Chapple, and Mr Jujl. Denni- 
 soN ; Mr Juji. WRIG^T, indeed, being of a dif- 
 ferent opinion, namely, "■ that it was a removal 
 at the peril of the infured/' i. Burr. See the 
 P receding^ 
 
 Noble
 
 Alteration.— Deviation. 425 
 
 Noble cigainfi Kennoway. 
 
 Infurance was made upon the fhips, " the Hope 
 ** and the Anne^ at and from Dartmouth to Wa- 
 " terford, and from thence to their port or ports 
 " of difcharge on the coaft of Labrador, with 
 ** leave to touch at Newfoundland ; and upon 
 ** any kind of goods and merchandifes ; and 
 *' alfo on the fhips till they /hall be arrived 
 ** at their port of difcharge^ and Jhall have moor- 
 " ed at anchor twenty-four hours ; ctnd on the goods 
 " and merchandifes until the fame JImll he there 
 ** difcharged andfafely landed*'' 
 
 The Anne arrived fafe on the coaft of Labra- 
 dor, on the 22d of June, and the Hope on the 
 14th of July 1778. From the time of their ar- 
 rival, the crews were employed in fifhing, and 
 had taken out none of their cargoes, except at 
 leifure hours, (partly on Sundays) fuch things as 
 were immediately wanted. On the 13th of Au- 
 guft, an American privateer entered the harbour, 
 (Temple-bay) and took both the veilels, there 
 being nobody at that time on board cither of 
 them. The adion was brought to recover the 
 value of the goods. The defence was, that 
 there had been an unneceflary delay in unload- 
 ing the cargoes, in confequence of which they 
 had been expofed to capture ; and that the un- 
 derwriters ought not to be liable for what had 
 happened fiom the negligence of the infured. 
 The plaintiffs refted their caufe on the words of 
 the policy, and on the ufage of the trade ; with 
 
 regard
 
 426 Insurance Contract, how dissolved. 
 
 regard to which, they produced evidence to 
 ihew that this had been cuftomary during the 
 fhort time that fettlements had been eftablifhed 
 on the coaft of Labrador ; and that in the New- 
 foundland trade, which was perfedly iimilar, it 
 is cuftomary to keep their goods on board feveral 
 months, and only to unload their cargo when 
 they could not fifh. 
 
 A verdi6l having been found for the plaintiff, 
 a rule to fhew caufe was obtained ; when Lord 
 Mansfield and the whole Court, were of opi- 
 nion, that every underwriter is prefumed to be 
 acquainted with the practice of the trade he in- 
 lures ; and confequently he had no reafon to 
 complain of the delay of landing the goods 
 which had taken place in the prefent cafe : And 
 that the evidence with regard to the pradice of 
 the Newfoundland trade was properly admitted 
 with regard to the nature of the trade recently 
 eftabliflied on the coaft of Labrador. — The rule 
 difcharged. — Douglas Reports ^ 22. November 
 1780. 
 
 The following cafe is nearly connedled. 
 
 Planche flwc/ Jacquery againjl Fletcher. 
 
 The plaintiff's Planche and Jacquery, mer- 
 chants in London, infured goods " on board the 
 *' Swedifti ftiip called the Maria Magdalena^ at 
 *' and from London and Ramfgate to Nantz, 
 " with liberty to call at Oft end, being a general 
 " ftiip in the port of London for Nantz." Th^ 
 
 defendant
 
 Alteration. — Deviation. 427 
 
 defendant underwrote the policy for L. 300, at 
 3 guineas per cent. The fhip's clearances from 
 the cuftom-houfe in London, and her other pa- 
 pers, were all made out as for Oftend only ; but 
 the fhip and goods were intended to go diredly 
 from London to Nantz, without going to Oftend. 
 Bills of lading in the French language, dated 
 18th July 1778, were iigned by the captain in 
 London, but purporting to be made at Oftend, 
 and that the goods were (hipped there to be de- 
 livered at Nantz. The policy was fubfcribed 
 by the defendant on the 7th July, and the lad- 
 ing was taken in between the 24th July and 
 17th Auguft. The proclamation for making 
 reprifals on French fhips, bore date the 29th, 
 and appeared in the Gazette the 31ft July. Two 
 underwriters had figned the policy after the pro- 
 clamation, at the fame premium of 3 guineas ; 
 one on the 31ft of July, and the other on the 
 7th Auguft. The fliip failed on the 24th Au- 
 guft, and was taken by a King's cutter on her 
 way to Nantz. After her departure from 
 Gravefend, the captain threw overboard all the 
 papers he had received from the cuftom-houfe at 
 London ; they had been obliterated by the cuf- 
 tom-houfe officers at Gravefend, and were no 
 longer of any ufe. The (hip was releafed by 
 the Admiralty ; but the goods, in which alone 
 the plaintiffs were concerned, were condemned. 
 A verdidl having been found at Guildhall for 
 the plaintiffs, application was made for a new 
 
 trial,
 
 428 Insurance Contract, how dissolved. 
 
 trial, upon two grounds ; one of which was. 
 That there was a fraud in the underwriters, the 
 fhip having been cleared out for Oftend, and yet 
 never having been deligned for that place*. 
 
 Belides the fads above Hated, the plaintiffs 
 produced evidence to fhew, that all Ihips going 
 with goods of Britifh manufadlure to France, 
 clear out for Oftend, without meaning to go 
 thither ; and that this is univerfally underftood 
 by the perfons concerned in that branch of com- 
 merce. The view was to evade certain French 
 duties. 
 
 Lord Mansfield faid, That the clearance for 
 OJlend could be no fraud upon the underwriters, 
 being according to the eflablijhed courfe of the trade* 
 Perhaps it was no fraud upon any body ; for it 
 was probable, that thefe evafions of the French 
 duties were connived at by the Fermiers Gene- 
 raux. But, at any rate, the evafion of a foreign 
 revenue-law was no fraud in this country ; one 
 nation does not take notice of the revenue-laws 
 of another f. 
 
 The 
 
 * The other was, That as hoftilities were declared after 
 the policy was figned, and before the (hip failed, the defend- 
 ant ought to have had notice, that he might have exercifed 
 his difcretion, whether he would chufe for a peace premium 
 to run the riik of capture. 
 
 f As to the other objedlion, his Lordfhip obferved, that in 
 the circumflances of the cafe, every man, at the time the policy 
 was underwritten, might have forefeen the war j and as other 
 
 perfbn?^
 
 Alteration. — Deviation. 429 
 
 The rule difcharged. Douglas's Rep. i^th No- 
 
 vernher 1779. 
 
 But it is in the cafeof £«,/? India fhips,that mofl 
 frequent and ftriking examples have occurred, 
 of the eifed of ufage in interpreting the meaning 
 of parties. 
 
 Salvador!;. Hopkins, fl72^HEATTONi;.RucKER» 
 
 By the charter-party made ufe of between the 
 Eajl India Company, and the owners of ftiips 
 taken into their fervice, the Company are at li- 
 berty to detain all fuch fhips for twelve months 
 after the expiration of the original agreement. 
 
 The IVinchelfea was infured *' at and from 
 *' Bengal to any ports and places in the Eajl Indies , 
 ''China, Perjia, or elfe where, beyond the Cape of 
 *' Good Hope, forwards and backwards, and du- 
 " ring her flay at each place, until her arrival at 
 *« London,"*^ — " at a premium oi four per cent." 
 
 The velTel was detained in the Eajl Indies, in 
 confequence of a new agreement with the prcfi- 
 dency of Bengal, from March 1762, till fome 
 time in March 1764, when Ihe was loft. The 
 underwriters infifted, that the policies were void, 
 becaufe, at the time of fubfcribing, they were 
 not exprefsly told of the new agreement, by 
 which the ihip was to be detained in India for a 
 year longer than the enlarged time provided for 
 
 Hhh by 
 
 perfons had underwritten at the fame premium after war 
 was adtually proclaimed, it appears probable, that the de- 
 fendant himfclf had the war riik in view when he figncd.
 
 430 Insurance Contract, how dissolvei?. 
 
 by the charter-party, this laft having expired on 
 the nth of February 1764. 
 
 There were nine caufes on the fame fhip, 
 which were at 'firft decided differently ; but on 
 motion for a new trial, were all ultimately de- 
 termined in favour of the affured, — upon thefe 
 grounds : That the underwriters are bound and 
 prefumed to know the courfe of the Eajl India 
 trade, the terms of the charter-party, and the de- 
 ftination of Lidia Ihips, (which are under the di- 
 reftion of the Company, and not of their own- 
 ers.) — That, befides the liberty given by the 
 charter-party, to prolong the ftiip's Hay for one 
 year, it is 'very common, by a new agreement, to 
 detain her a year longer ; for no Ihip comes 
 home in ballaft ; and the longer a Ihip is kept, 
 the more beneficial to the owners. — That the 
 words of the policy are adapted to this ufage, 
 being without limitation of time or place. 
 
 All thefe particulars, the infurers might eafily 
 have learned at the India-houfe, and ought to 
 have known. — But they had infured without 
 afking queflions about her flay. And there was 
 itrong evidence, that the difference of her flay- 
 ing one year longer, would not have altered the 
 premium: For after the new agreement was 
 known, fhe was infured at the fame premium, — 
 and none of the underwriters inlifted to be off. 
 
 In Salvador v. Hopkins, and thefe other cafes, 
 in which a verdid had been found for the plain- 
 tiffs, the rule was difcharged. 
 
 But
 
 Alteration.— Deviation. 431 
 
 But in Heatton v. Kucker^ where it had been 
 ibr the defendant, the rule was made abfolute. 
 3. Burr, izth June 1765, B. R. 
 
 The fame point, that, in confequence of the 
 ufage of the trade ^ an infurance on India fliips is 
 underftood to comprehend the country voyages^ 
 was determined or admitted in a variety of 
 cafes ; — Prefton v. Greenwood ; — Gregory v. Chri- 
 fi'ie ; — Jackfon v. Macau/ay ; — Moffat againfl 
 Ward ; — Farquarfon v. Rayjnond, and Farquar- 
 Jon V. Hunter, all in the courfe of the year 
 
 1785. 
 4. So far the circumftances, which are necef- 
 
 fary to conftitute an alteration or deviation, and 
 the general effedl of either to vacate the policy, 
 or, at leaft, to liberate the underwriter from his 
 obligation, admit of no difpute. But it may be 
 a matter of more doubt what Ihall be the confe- 
 quence, when there has been an intention to 
 vary from the voyage undertaken ; but that in- 
 tention, by the interpofition of accident, pre- 
 vented from being carried into execution. 
 
 Suppofe, for example, that the aflured owners 
 have taken on board a conjignment to a different 
 port from that fpecified in the policy ; but the 
 veffel is loft in that part of her courfe in which 
 both voyages coincide. Or fuppofe the mafter 
 has refolved to touch at a port not exprefsly 
 mentioned, but the fhip is captured before he has 
 carried that fcheme into execution : Will thcfe 
 infer fuch a variation as Ihall free the infurer ? 
 
 And
 
 432 Insurance Contract, how dissolved. 
 
 And here there feems to be room for a well 
 founded dillindion between an alteration of the 
 voyage and a mere deviation from it. An altera- 
 tion was explained to be *' a variation in the plan 
 ** of the adventure, adopted previous to the com- 
 " mencement of ri/k ;" but a deviation takes place 
 ** in the execution of the original plan, after 
 ** the rifk has commence d^ From this diftinc- 
 tion, it feems to follow, that an intention to alter 
 the voyage Ihall deflroy the contrad: ; but an 
 intention to deviate merely, muft, in order to 
 that efFedt, be adlually carried into execution. 
 
 It may here, in the firji place, be obferved, 
 that an alteration, though ijierely intended, and 
 not executed, may produce conliderable differ- 
 ence in the rifk run by the underwriter : For it 
 is a variation in the plan of the a,dventure ; and 
 every variation in this refped: muft produce a 
 greater or lefs variation in the alTured's prepara- 
 tion and outfit, and in the whole meafures cal- 
 culated for the voyage. In this manner the rifk 
 run may be different from that undertaken, al- 
 though the veffel fliould fcarcely have weighe4 
 Jier anchor. 
 
 Suppofe a Ihip to be infured from London to 
 the South Sea. She requires a thorough repair, 
 a good ftock of all kinds of fupplies, a ftrong 
 complement of men, and perhaps an armed force, 
 for fuch a fervice. The infurer knowing all 
 thefe things to be neceffary, contradls upon the 
 profpect of that particular hazard. But the af- 
 
 fure4
 
 Alteration. — Deviation. 433 
 
 fured alters his plan, and fends his vefTel only 
 to the Madeiras ; which, we Ihall fuppole, re- 
 quires a fmaller force, and an inferior degree of 
 reparation. The veflel is loft, or taken, while 
 in the dired: road both to the South Sea and Ma- 
 deiras ; yet Ihe was not in the courfe of the ad- 
 venture originally infured ; for the preparation 
 and outfit were different from what was exped- 
 ed, and, for any thing that appears, might be 
 the caufe of the lofs. Confequently the rilk run 
 was, from the very inception of the voyage, from 
 the moment the veffel weighed anchor, different 
 from that which the infurer meant to undertake. 
 
 An intended deviation, on the other hand, as 
 it fuppofes the original plan ftill to continue in 
 view, and the departure from the policy to be 
 adopted fubfequent to the commencement of 
 rifk, feems to exclude, in a great meafure, the 
 idea of any variation with refped to the prepa- 
 ration or outfit. The voyage, therefore, con- 
 tinues the fame with what was undertaken ; the 
 intention to deviate produces no difi'erence in 
 the infurer's rilk, until that intention be adual- 
 ly carried into execution. 
 
 But, in the fecond place, a view much more 
 important occurs. Intention to alter muft va- 
 cate the policy, independent of any confideration 
 as to the amount of rifle ; for by intendmg to 
 alter the voyage, the affured has receded from 
 Jiis agreement.
 
 434 Insurance Contract, how dissolved. 
 
 It was formerly obferved, that while matters 
 continue entire, and before the rifk has com- 
 menced, the aflured may recede from the con- 
 trad, by breaking up the adventure underwrit- 
 ten. He adually does this, when he alters the 
 veffePs deftination, and the concerted plan of 
 the voyage. In fuch a cafe, if the veflel had 
 arrived in fafety, the infurer would have had no 
 action to recover the premium ; for the alTured 
 would have fhown, that the contract was void, 
 by his breaking up the voyage re Integra. And 
 it is impoffible that the obligation of the under- 
 writer can fublift, while the reciprocal obliga- 
 tion of the owner is at an end. 
 
 The fact, however, that the affured means to 
 retract^ can be afcertained from a proof of in- 
 tention only ; becaufe his option, in this refped, 
 muft be exercifed rebus integrisy and previous 
 to the adual commencement of the voyage. — It 
 is a matter which is conftituted by deliberate in^ 
 tention fingly. And as intention to alter the plan 
 of the adventure, will vacate- the obligation of 
 the owner, the fame naked intention muft put 
 an end to that of the infured. 
 
 But in a deviation, there is no Foom for a fup- 
 polition, that the affured means to recede ; be- 
 caufe, after the riik is once fairly commenced, 
 the lituation of parties does not admit the ex- 
 ercife of fuch a power upon his part, but he is 
 bound to perform the contrad in all points. 
 As therefore an intention to deviate will not free 
 
 the
 
 Alteration. — Deviation. 435 
 
 the afllired, there is no reafon why it fliould li- 
 berate the underwriter. 
 
 Hence, in the cafe of an alteration, as the 
 policy is null, whenever the infured adopts the 
 refolution of breaking up the voyage, the under- 
 writer is bound to reftore the premium ; and all 
 things are reftored to their original ftate, as if 
 there had been no contract:. But where a varia- 
 tion has taken place, after the commencement 
 of rifk, the infurer keeps the premium, although 
 his obligation is vacated from the moment of the 
 deviation. 
 
 It would be a greater hardfliip, therefore, upon 
 the affured, to infer a deviatio?i, than a?i altera- 
 tion of the voyagej from naked intention. 
 
 From what has now been ftated, one reafon 
 fuggefts itfelf, for what was formerly laid down, 
 and illuftrated by the decifions, Valleio v. PVheel- 
 er, and Nutt v. Bourdieu; — That there can be 
 no baratry with the acceffion of the fliip-owners. 
 In fact, every departure from the policy, with 
 the acceffion of the fhip-owners, implies, not 
 merely a deviation, but an alteration of the voy- 
 age. There is no contract; for the voyage infu- 
 red has never exifted ; and there was, from the 
 beginning, no room either for baratry, or for 
 any other of thofe perils to which the infurer is 
 underftood to fubjedl himfelf. 
 
 It remains to fhew by examples, what has 
 been the practice upon this nice and intricate 
 
 point. 
 
 In
 
 43^ Insurance Contract, how dissolved. 
 
 In the Jirfi place, it feems to be agreed, that 
 an intention merely to deviate^ has no effedt un- 
 til carried into execution. 
 
 Kemp £f;2^ Andrews. 
 
 If, after a policy of infurance, a damage hap- 
 pens, and, afterwards, in the fame voyage, a de- 
 viation; yet the alTured Ihall recover for what 
 happened before the deviation. For the policy 
 is difcharged from the time of the deviation on- 
 ly. Shower, 129. — 2. Salkeld, 444. 
 
 Upon the fame principle, the ordinances of 
 many countries agree in declaring, that if the 
 voyage be only Jhortened, the rilk ends, and the 
 premium is gained. In fadt, to fhorten the 
 voyage, is to terminate it by a deviation. 
 
 ** Infurers fhall be difcharged from rilks, and 
 " Ihall gain the premium, if the aflured, with- 
 ** out their confent, fend the fhip to a greater 
 ** dijlance than that mentioned in the policy, 
 ** though it be in the fame courfe. But the in- 
 " furance Ihall fully hold good, if the voyage be 
 ** onXyJhortened.''* Guidon, e.g. art. 12. 
 
 In the decifion. Cock v. Town/on^ formerly 
 ftated, " it was held by Lord Camden, and the 
 " jury, that from the moment the fhip George 
 " deferted or deviated from the diredt voyage, 
 " the policy was difcharged *." 
 
 So 
 
 * The fame thing is laid down in the opinions of four 
 eminent Eng/t/b Counfel, upon the cafe of the yeam'e, Bu- 
 
 chnnan
 
 Alteration. — Deviation. 437 
 
 So much for the effed: of intention merely to 
 deviate. But with regard to an intentional idte- 
 ration, the practice is very far from being equally 
 uniform. 
 
 The general line of foreign decifions, in the 
 firft place, feems to be diredtly oppofite to the 
 principles we have ventured to lay down ; and 
 to ellablilh a conclulion, that even an in- 
 tention to a/ter, and to change the plan of the 
 adventure, mufl be carried into executioriy before 
 it fhall vacate the policy. There are three cafes 
 coUecled by Bytikerjhoek^ which diredly fupport 
 this opinion. At the fame time, thefe decifions 
 aiTume principles fo widely different from what 
 are received in Britain at this day, that, it is be- 
 lieved, the Engli/h reader will not be difpofed to 
 allow them much weight in the determination 
 of the point. 
 
 Cafe. — A fhip infured at Anijlerdaniy " from 
 ** MarfeilleSy fo far as the Elbe, with power to call 
 " at allfuch places as the majler Jball think proper^ 
 " no place excepted," was taken in the Medi- 
 terranean by the Turks, and burnt. The infured 
 having claimed payment of the lofs, the infurers 
 defended themfelves on this fmgle ground, 
 that the Ihip had altered her voyage, or had 
 certainly determined to alter it ; for that he 
 
 I i i who 
 
 chanan againjl Hunter-Blair, from which it appears, that the 
 rule as to an intentional deviation is perfectly underftood and 
 cftabliflied in England. See thefe opinions in Wejkct's Digtjl.
 
 438 Insurance Contract, how dissolveet. 
 
 who alters his voyage, or intends to go into any 
 other port than that exprelTed in the policy, has 
 no action ; and the infurers proved the defign 
 of altering the voyage by the confignment ; that 
 the mailer had, at Marfeilles, agreed to freight 
 his fhip for Dunkirk ; that he failed from Mar- 
 feilles to Alicant^ and there alfo freighted his 
 Ihip for Havre de Grace, and that thefe two 
 places not being exprefled in the policy, here 
 were therefore two new voyages meditated or in= 
 tended, though not perfedted. The infiired did 
 not deny this, but faid, that the Ihip was infured 
 from Marfeilles to the river ElbCy " with liberty to 
 ** go to all ports and places, none excepted." 
 The meaning of which, in mercantile ufage, was 
 (upon the evidence of a crowd of merchants and 
 feamen) maintained to be, that the fhip could 
 go to and touch at all ports intermediate, between 
 the places to which and from which the infu- 
 rance was made ; and fhe mull, between Mar- 
 feilles and the Elbe, pafs by Alicant^ Havre and 
 Dunkirk. The infured added, that the Ihip was 
 taken by the Turks, and burnt in the Mediterra- 
 nean, and that fhe mull certainly have failed 
 through that fea towards the Elbe; for as to 
 other cities, towns, or ports, and whether it was 
 lawful for her to go to them, it would indeed be 
 a proper fubjedl of enquiry, if at or about thefe 
 other cities, l^c, the fhip had fufFered the lofs in 
 
 queilion. 
 
 The
 
 Alteration. — Deviation. 4^ 
 
 The infurers, on the other hand, infifted, that 
 the general liberty in the policy did not imply a 
 power of touching at all places in the route, with 
 a view of trade, but merely from views of necef- 
 lity, and produced the opinion of fome perfons 
 Txiuch verfant in infurances, in fupport of this 
 conftruclion ; — that belides, the alteration of the 
 voyage appeared from the determinai^tion of the 
 mind alone ; nor was it material in what place 
 the fhip fufFered the lofs, the folc refolution of al- 
 tering the voyage, not the event, being what 
 ought to be regarded. The Chamber of Infu- 
 rances at Amjlerdam^ and afterwards the Sea-- 
 bini, decided in farour of the infurers ; but the 
 Curia altered the judgment. 
 
 When the queftion came before the Senate, 
 mofl of the Senators were of opinion, that 
 the claufe of liberty to " touch at all places,'* 
 extended farther than to cafes of neceffity ; 
 for otherwife it was quite fuperfluous j — but 
 what principally moved them was, that the 
 fhip was deflroyed and burnt, when flie was 
 failing in the proper courfe towards the Elbe, and 
 that the rilk or peril which the infurers took upon 
 themfelves, mult be eftimated from the place 
 where the lofs happened ; for that the fiaked de- 
 terinination or bare refolution to alter the voyage did 
 not hurt the infurers ; the event of an alteration 
 might have hurt them, but it was in vain to com- 
 plain or enquire about a matter which plainly 
 
 wa^
 
 440 Insurance Contract, how dissolved. 
 
 was not effedted or carried into execution.— 
 Judgment for the aflured. Feb. 28. 1708. Byn- 
 kerjh. ^(sfl> Jur. Priv. lib. 4. c. 3. 
 
 It deferves notice, that were it not for the ac- 
 count given by Bynkerjhoek of the principle on 
 which this decilion proceeded, the judgment it- 
 felf is defenfible upon the general liberty granted 
 in the policy, oi going to all ports and places. 
 
 Cafe. — A Ihip infured from Amfterdam to Lon- 
 don, having been taken in her courfe by a 
 French privateer, was ranfomed for a certain 
 fum ; and having afterwards proceeded on her 
 voyage to England, and arrived at the Nore, 
 from thence, inltead of going to London, altered 
 her courfe, and failed to Lynn Regis in Nor- 
 folk ; wbkb from the bills of lading appeared 
 to have been all along the port of her defiination. 
 In an action brought by the infured againft the 
 infurers for the ranfom money, the infurers re- 
 fufed to pay, becaufe the Ihip never came to Lon- 
 don, the place exprefled in the policy ; the in- 
 furers, in order to be difcharged, urged princi- 
 pally that here there was not merely an inten- 
 tion of altering the voyage, but that in fa6l it 
 was altered ; for that the faid fhip did not fail 
 to London as by agreement it ought to have 
 done, but to Lynn Regis ; a place which was 
 not mentioned in the policy, and therefore the 
 contract was void. In anfwer to this the alTured 
 
 maintained.
 
 Alteration.— Deviation. 441 
 
 maintained, that it was not requifite to exprefs 
 the place or port of the fhip's unloading or dif- 
 charging, but the place or point at which the 
 ftiip might arrive ; it being fufficient if it ap- 
 pears how far or to what point the infurer under- 
 took the rifk ; the whole voyage, and part of the 
 voyage, might be agreed for, and ib the fhip con- 
 ligned from the Mediterranean to Amfteraam, 
 might be infured to Amfterdam or to Cadiz ; 
 and if to Cadiz, it muft be at the rifk of the in- 
 furer to the height of, or as far as Cadiz ; nor 
 could he demand that the fhip fhould necefTarily 
 enter the very port of Cadiz, although fhe might 
 if fhe would : If, therefore, the fhip be loft be- 
 fore her arrival at Cadiz, the lofs is at the rilk of 
 the infurer ; and fo in the cafe that has happen- 
 ed, the fhip could not fail to Lynn Regis, without 
 firft failing to the mouth of the Thames ; where- 
 fore, fo far fhe failed at the rifk of the infurer, 
 and before fhe arrived there was taken by ene- 
 mies and ranfomed : — The fhip might have fail- 
 ed to London, according to the policy of infu- 
 rance ; but he who undertook a rifk to London, 
 has certainly undertaken it as far as the mouth 
 of the Thames: And though the fhip did not 
 fail from thence to London, it is obvious that 
 the infured did not thereby run a greater, but 
 a lefs rifk ; and therefore it is of no confequence 
 to him that the fhip did not fail to London. If 
 the fhip had been taken at the mouth of the 
 Thames, failing to Lynn R-egis, no adion would 
 
 have
 
 442 Insurance Contract, how dissolved. 
 
 have lain againft the infurer ; but fuch farther 
 deftination to Lynn Regis does not increafe his 
 rifk. Judgment was given for the aflured. 
 June 27. 1720. ibid. lib. 4. c. 5. 
 
 Cafe. — Infurance was made at Amllerdam 
 upon a fhip on a voyage ** from Lilbon to Ham- 
 " burgh ;" — the fhip was loll near the coaft of 
 England ; and the infurers refufed to pay the 
 lofs ; becaufe from the bills of lading, it appear- 
 ed that fhe was dejlined not for Hamburgh, but 
 for Toningen in Holftein : The infured anfwer- 
 ed, That though the bills of lading indeed bore 
 to Toningen, yet this was merely to protedt the 
 velTel from French privateers, Toningen being a 
 neutral port, and that in fatSl Hamburgh was 
 the real port of the Ihip's deftination ; but far- 
 ther, and independent of this, the infured deni- 
 ed, that the voyage was altered, iince the fhip 
 was loft between thofe places that were exprefled 
 in the policy ; to wit, between Lift)on and Ham- 
 burgh ; and that an alteration of the voyage was 
 to be underftood in the cafe only oiiokVixz pre- 
 judice accruing to the infurer ; fuch as, that he 
 run a greater rilk than he undertook by the po- 
 licy on the voyage infured ; it was lawful to fti- 
 pulate that not the whole voyage, but even fome 
 part of it Ihould be within the policy or rifk of 
 the infurer ; and it is therefore nothing to the 
 purpofe, that the fhip was truly deftined for 
 Toningen, and the infured had delired it fo to be^ 
 
 iince
 
 Alteration. — Deviation. 443 
 
 fince the fhip was not loft between Hamburgh 
 and Toningen, but between Lifbon and Ham- 
 burgh. — Judgment was given for the infurcd. 
 April 11. 1 714. — ibid. c. 10. 
 
 The following Britifli decifion is a little ob- 
 fcure ; and it does not clearly appear, whether 
 the /pedes faEii regarded an intention to alter, 
 or to deviate. As the former, however, feems 
 moft probable, it muft be confidered as fupport- 
 ing the fame fide of the queftion with the Dutch 
 decifions now ftated. The cafe quoted in it, Car- 
 ter V. R. Exch. AJf. Co. is clearly a cafe of altera- 
 tion, not deviation. Both cafes are delivered to 
 us without circumftances, and, therefore, of lefs 
 authority. 
 
 Foster i). Wilmer. 
 
 The infurance was " from Carolina to Lifhon, 
 " and at and from thence to Briflol.'" It appear- 
 ed the captain had taken in fait, which he was 
 to deliver at Falmouth before he went to Briftol ; 
 but the fliip was taken in the dired road to 
 both, and before ihe came to the point where 
 fhe fhould turn off to Fahnouth ; and it was 
 held the infurer was liable ; for it is but an in- 
 tention to deviate, and that was held infufficicnt 
 to difcharge the underwriter. In tlie cafe of 
 Carter v. R. Exch. Affurance Co. where the infu- 
 rance v/as from Honduras to London, and a 
 confignment to Amfterdam, a lofs happened be- 
 fore fhe came to the dividing point between 
 
 thcfc
 
 444 Insurance Contract, how dissolved. 
 
 thefe two voyages, which the infurers were held 
 to pay for. Strange 1249. i^th Geo, II. 
 
 On the other hand, there are a variety of re- 
 cent cafes which have been uniformly decided 
 in England and Scotland, upon the principle 
 that an intention to alter is fufficient to void the 
 policy. From thefe the point feems to be, in 
 this country, perfectly fettled. Two or three 
 of the moll remarkable may be quoted in this 
 place ; the reft may be referved for the illuftra- 
 tion of fome other queftion. 
 
 WooLDRiDGE againjl Boydell. 
 
 The fhip Molly being infured " at and from 
 *' Maryland to Cadiz*'' was taken in Chefapeak- 
 bay, in the way to Europe. The aflured 
 brought this adion againft the defendant, one 
 of the underwriters on the policy. The trial 
 came on at Guildhall before Lord Mansfield, 
 when a verdid was found for the defendant, 
 and a new trial being moved for, the material 
 fads of the cafe appeared to be as follows : — 
 The fhip was cleared from Maryland to Fal- 
 mouth, and a bond given that all the enumera- 
 ted goods were to be landed in Britain, and all 
 the other goods in the Britifti dominions. An 
 affidavit of the owner ftated that the veffel was 
 bound for Falmouth. The bills of lading were 
 «* to Falmouth and a market,'"' and there was no 
 evidence whatever, that Ihe was deftined for 
 
 Cadiz»
 
 ALTERATION.-f-DzVIATION. 445 
 
 Cadiz. — It was contended in favour of a new 
 trial, that this was like the cafes of an intention 
 to deviate^ where a capture had taken place before 
 the deviation was carried into execution, which 
 did not vacate the policy. — And befides, it was 
 urged, that by the expreffion '* a market^" in the 
 bills of loading, was meant Cadiz ; and that 
 ** to Falmouth and a market'' might be confider- 
 ed as meaning to the market at Cadiz, firft 
 touching at Falmouth. — It had appeared, how- 
 ever, in evidence, at the trial, that the premium 
 to infure a voyage from Maryland to Falmouth,, 
 and from thence to Cadiz, would have exceeded 
 greatly what was paid in this cafe. 
 
 On the other hand, it was argued, that here 
 there had been no inception of the voyage in- 
 fured, and, therefore, the cafes quoted, of an in- 
 tention to deviate, did not apply. 
 
 The Court diftinguiflied between an altera- 
 tion, fuch as took place here, and a mere devia- 
 tion, the defign of which was taken up in the 
 courfe of the voyage. And here there was fuf- 
 ficient evidence that the velTel was never intend- 
 ed for Cadiz, the port mentioned in the policy, 
 — The rule difcharged. — Douglas' Reports, i^^tb 
 November 1778. 
 
 Bain againjl Kip pen. 
 
 Kippen made infurance for Bain, upon a veflel 
 
 M at and from Rothfay, in the Frith of Clyde, 
 
 «* to the 111c of Man, and from thence to the 
 
 K k k ** Broomielaw
 
 44^ Insurance Contract, how dissolved. 
 
 ** Broomielaw of Glafgow." There afterwards 
 appeared reafon to believe, that her deftination 
 really was to filh off the Ille of Man ; an ad- 
 venture attended with more hazard, and en- 
 titling the infurer to a higher premium. 
 
 The Ihip proceeded from Rothfay, in the 
 Ifland of Bute, on her voyage to the Ille of 
 Man ; but having been, by ftrefs of weather, 
 driven back to the former ifland, fhe was there 
 Itranded and wrecked. 
 
 Bain having fued K'lppen for the infured values 
 before the Admiral-court, the caufe was thence, 
 at the defender's inftance, removed into the 
 Court of Seffion. 
 
 It was pleaded for the underwriters, that the 
 voyage for which the vefTel was really deftined, 
 being different from that fpecified in the infu- 
 rance, no adlion can lie on the policy ; for par- 
 ties were not agreed ; the rifk undertaken was 
 different from that underllood. That fuch con- 
 cealment, befides, of the velTel's real deftination, 
 was a fraud upon the infuren 
 
 It was anfwered by the afTured, That the vef- 
 fel was admitted to have been wrecked in a 
 courfe the fame with that of the voyage covered 
 by the infurance. Whatever intention there may 
 have been to vary the voyage, it had never been 
 carried into execution. — The Lords affoilzied the 
 underwriter. 
 
 In
 
 Alteration. — Deviation. 447 
 
 In a reclaiming petition, the aflured having 
 offered to prove that the deftined voyage was not 
 for the purpofe of fifhing, but truly fuch as was 
 defcribed to the defender, the Court allowed the 
 proof to be adduced. Fac. Coll. 2oib November 
 1783. 
 
 Buchanans againjl Hunter-Blair. 
 
 John and George Buchanans^ merchants in Glaf- 
 gow, in confequence of fome mifapprehenlion 
 between them and their agent at Honduras, got 
 infurance done upon their veffel, the Jeaniey 
 " from Honduras to Brijlol,*'' while the agent had 
 cleared her out for London. The vefTel being 
 wrecked foon after her departure from Hondu- 
 ras, the underwriters refufed to pay the lofs, be- 
 caufe the voyage had been altered^ the Jeanie be- 
 ing configned to London inftead of Brillol. 
 
 In an adtion at the affured's inltance again ft 
 the underwriters, before the Admiral-court, for 
 the infured values, the Judge-admiral pronoun- 
 ced a decree to the following eifedt : — " In re- 
 *' fped the purfuers did not difclofe their direc- 
 '* tions to their correfpondent, relative to the 
 *' Ihip's deftination for the port of London, and 
 ** fet forth to them the embarralTment which 
 " might arife from the contrary orders that had 
 ** been given, whereby the defenders might have 
 *' had fufficient lights to determine whether, in 
 " thefe circumftances, they would have inTured : 
 
 " Therefore
 
 443 Insurance Contract, how dissolvei>, 
 " Therefore difmifles the claim of the aflured,** 
 
 In a redudlion of this judgment before the 
 Court of Sellion, it was pleaded, That this was a 
 mere innocent miltake, without fraud, for which 
 it would be hard to vacate the policy ; and that 
 the prefent cafe correfponded exadly to that of 
 an incomplete intention to deviate, the veflbl ha- 
 ving been loft in the dired: courfe both to Lon- 
 don and Briftol. See the cafe Fojier v, Wilmer.-^ 
 Bynkerjh. ^ Jur, Prh, 
 
 It was anfwered for the infurers. That a mif- 
 reprefentation by the afliired, of a fadl that is 
 material, like the Ihip's deftination, muft vacate 
 the policy, whether it has arifen from fraud or 
 error. That _bere the voyage undertaken had 
 never commenced ; and as the infured, by break- 
 ing up the voyage, was free from the payment 
 of premium, fo muft the underwriter from the 
 rilks of the adventure. That this put a material 
 difference between an intended alteration and 
 deviation. And if it were to be found, that an 
 infurance to one place covered a voyage to an- 
 other, becaufe the courfes were the fame for a 
 part of the way, it would involve the moft dan- 
 gerous and extenfive confequences, and deprive 
 the infurers of all certainty as to the extent of 
 what they had undertaken. The Lord Ordina- 
 ry, (Auchinleck) and afterwards the Court, 
 '* approved of the Judge-admiral's decree, and 
 
 *' aflbilzied
 
 Alteration. — Deviation. 440 
 
 ** aflbilzied the defenders." Fac. Coll. Julyi^. 
 1779*. 
 
 Confidering this diftindlion therefore, between 
 an intended alteration and deviation, as perfedly 
 eftablifhed, it will lead to an explanation of a 
 variety of apparent inconliftencies in the foreign 
 ordinances. Thus, where it is faid, " If a fhip 
 ** fliall voluntarily go by Cape Verde, without in- 
 " ferting and declaring it in the policies, it Ihall 
 *' be deemed a change of voyage ; and if jfhe 
 ** fhould be loll, the infurer fhall have nothing 
 ** to pay, whether fhe be loft before or after ar- 
 " riving at the Cape de Verde iflands." Ord. 
 of Spain. — This muft obvioufly relate to the cafe 
 of an intended alteration^ where the determina- 
 tion as to the Cape Verde iflands had been taken 
 up before the commencement of rilk, and con- 
 fequently the infurance would be null from the 
 beginning. 
 
 5. In cafes of variation from the voyage in- 
 fured, it is not a fufficient defence to the afllired, 
 that the departure from the policy was the ad of 
 mafter or crew alone, and that the aflured them- 
 felves were not acceffory to it. This fituation, 
 it may be obferved, can only occur where the 
 aflured is a Jhipper of goods ; becaufe the owner 
 of fliip, having the regulation of the adventure, 
 cannot be fuppofed ignorant of any alteration 
 
 projeded, 
 
 * The infured acquiefced in this judgment, upon the ad- 
 vice of four eminent Englifli counfel, whole opinions huvc 
 been publiflied at length in Mr WeJ'kit's Dlgejl of lt\furance.
 
 450; Insurance Contract, how dissolved* 
 
 projedled, from the courfe of the voyage fpeci- 
 fied in the policy. 
 
 It was formerly attempted to be (hown, that 
 the underwriter could never be liable beyond 
 the terms of his contrad ; that every departure 
 therefore, from the voyage infured, being con- 
 trary to the agreement, muil have the effed 
 naturally to vacate the policy, whether that de- 
 parture was the confequence of fraud or of mere 
 fault. It was obferved, however, that parties 
 might, by fpecial claufes, extend the obligations 
 of the underwriter beyond their natural limits : 
 He is not naturally liable for fraud or fault of 
 the aflured's fervants ; becaufe fraud and fault 
 fuppofe a breach of the implied terms of the con- 
 tradt ; but he may, by an exprefs llipulation, 
 fubjed himfelf to either. 
 
 It was farther obferved, that a great difference 
 had taken place between Britain, and the great- 
 er number of mercantile nations, in this refped. 
 In the foreign Hates, the infurer fubjeds himfelf, 
 either in exprefs terms, or by conftrudion, to 
 the confequences both of fraud and of negli- 
 gence ; in Britain he takes upon himfelf the peril 
 of baratry, by which is meant fraud only. 
 
 From this difference, very curious and import- 
 ant confequences follow ; and upon the point 
 now under confideration, whether the acceffion 
 of the alTured is neceffary, in order to give a de- 
 viation the effed of vacating an infurance-con- 
 
 trad,
 
 Alteration. — Deviation. 45 ^ 
 
 traft, a marked oppofition takes place between 
 the law of Britain, and of moft other countries. 
 
 In foreign ftates, the infurer undertakes for 
 the majler' s fault ; therefore he undertakes for a 
 deviation by the majler' s fault ; that is, every de- 
 parture from the policy, to which the alTured is 
 not acceffory. 
 
 Thus, by the ordinances of Middleburgh, " the 
 " infured mufl not caufe the mafler he has freight- 
 « ed to alter his voyage, or to enter or touch at 
 " any other port than what is expreffed in the 
 " policy, otherwife the aflurance (hall be void. 
 « But the mailer may touch at other harbours, 
 *« whenever neceffity requires it ; and luhen he 
 " a^s to the contrary, ivithoiit orders from the 
 affured, the afurance Jhall neverthelefs remain in 
 its full value, referving to the ajfurer his redrefs 
 <' upon the mafler." § 14. 
 
 By the ordinances of France, " Infurers fhall 
 *' be anfwerable for all lolTes or damages, which 
 " fhall happen at fea, by tempeft, ftiipwreck, 
 ftranding, running foul of other ftiips, changing 
 the courfe, or the voyage of the (hip, jettifon, 
 fire, capture, plundering, detention of princes, 
 " declaration of war, reprifals, and generally all 
 " other accidents of the fea." § 26. (1681.) 
 
 «« However, if the change of the courfe, the 
 " voyage, or the fhip, proceed from an order of 
 ** the infured, without the confent of the infurers, 
 *< theylhall not be anfwerable for the rilks.*' § 27. 
 
 By 
 
 
 it 
 it
 
 45"^ Insurance Contract, how dissolved. 
 
 By the Frujfmn maritime laws, or ordinances 
 of Koningjberg ;-r-" When an infured Ihip, or 
 " goods, with the knowledge and confent cf the par- 
 " ties injured^ go to other places and harbours 
 ** than thofe fpecified in the policy, the infurance 
 " {hall be void, and the premium agreed upon 
 ** fall to the infurer. But^ in cafe the majier, ei- 
 ♦* ther at the injiigation of another freighter ^ owner ^ 
 " or any other perfon, or of h'u own choice y fhall, 
 ** without any neceffity, fail to other places than 
 " that to which he was bound ; or, in cafe of 
 " danger, (hall neglect to endeavour, as far as is 
 " pofTible, to get into a place of fecurity, the in- 
 ♦' furance fhall remain in full force; but the in- 
 " furer (hall have his redrefs againlt the mailer 
 " and Ihip, for any damage or prejudice occa= 
 " fioned thereby." § 30. 
 
 By the ordinances of the city of Hamburgh \ 
 " When a mailer of a fhip fhortens his voyage, 
 " the rifk is at an end, and the premium gained ; 
 " but if he prolongs the fame, as, for example, if 
 " he goes to any other place than what he was 
 " bound to, ajid the fame is done with the know- 
 " ledge and confent of the affiired, then the alTurer 
 ** is nowife anfwerable for any misfortune that 
 ** may happen to Ihip or goods, in fuch circui-- 
 *' tous courfe." § 5. 
 
 By the regulations of Stockholm, " If the ma- 
 *« fter Ihall, without adual neceffity, and with- 
 ** out the confent and knowledge of the infured, 
 
 " go
 
 Alteration. — Deyiation. 453 
 
 ^* go to places and ports not fpecified in the po- 
 *' licy, the infurance is not invalidate thereby, but 
 " the infurer may obtain redrefs againft the ma- 
 
 f'fter.'* §11, 
 
 By the ordinances of Rotterdam, " the aflii- 
 ** red cannot give any orders to the captain for 
 " altering the voyage, or to go into any port, 
 ** contrary to the tenor of the policy ; and the 
 '* affured, if fuch alterations of the voyage art 
 " made by bis order, fhali lofe the right of his de- 
 " mand upon the infurer." § 51. 
 
 " When a captain, without neceflity, and 
 '^ without any orders from the affured ^ hath alter- 
 «' ed the voyage, or has run into, or touched at 
 " any other port or road, the affurance is to re- 
 ** main in its force. However, the affured being 
 " fatisfied by the affurers for the lofs fuflained 
 " by means thereof, Ihall be obUged, at the fame 
 " time, to give up to the affurers all the claim 
 " he may have upon the captain on that fcore." 
 
 By the ordinances of yi//7/?d'r^/ii///, "the infu- 
 ** red on the cargo may not caufe the mafter, 
 *' whom he has freighted, to enter, or to make 
 ♦♦ any other port, nor to alter his voyage, 
 *♦ but according to the policy, otherwife the in- 
 ** furance lliall be null, although it had been 
 ** inferted in the policy, that he might touch at, 
 " and make all places any where ; but the ma- 
 ^* fter may touch at other ports than thofe men- 
 ** tioned in the policy, when neceffity requires 
 
 L 1 1 " it.
 
 454 Insurance Contract, how dissolved. 
 
 ** it. And doing otherwife, if it be without order 
 '' of the infuredy the infurance Jhall neverthelefs 
 ^'■remain valid, fiving to the underwriters the 
 " right of having recourfe on, the mafier ; but if 
 ^* the infurance be made for the owners or pro- 
 «' prietors of the Jhip, it Jhall, in fuch cafe^ be 
 " nulir § 6. 
 
 In conformity with thefe regulations, a va- 
 riety of cafes are to be found in the Commenta- 
 tors, and particularly in every page of Bynker- 
 Jhoek ; of which the following is a fufficient ex- 
 ample : 
 
 Cafe. — A merchant in Sweden got his y^Kq\ 
 infured at Amlterdam, '* from Elfineur to Am- 
 " fterdam." The fhip deviated to the coafl of 
 Norway, for the fake of convoy, and was af- 
 terwards loft. 
 
 In an aftion upon the policy, the underwri- 
 ter, among a variety of defences, pleaded the 
 deviation. It was anfwered, that, by the Ord, 
 Amfl. the infurance fubfifted, if the mafier de- 
 viatedy without orders from the ajfiired, which 
 there was reafon to fuppofe had been the cafe 
 here. Several fenators maintained, that the or- 
 dinance alluded to related to the cafe of ajfured 
 Jhippcrs only, and not to ajfured owiiers, who 
 appoint the mafter, and ought to be refponlible 
 for him. But the majority thought it applied 
 to both. And although the owner was, by the 
 Civil law, liable for the condud of the mafier ; 
 
 yet
 
 Alteration. — Deviation. 455 
 
 yet it was allowed for the infurer to relieve him, 
 in part, from that obligation, by undertaking 
 for the mailer's fault, which he had done in 
 this cafe, by the iifual claufe for that purpofe in 
 the policy. The prefent deviation in this cafe 
 cannot imply y>w/<i* in the mailer, hwi fault 
 only ; and the infurer therefore was refponfible 
 for it. The Senate of Holland gave judg- 
 ment for the aflured f. (1717.) 
 
 In Britain, the contrary opinion is univerfal- 
 ly underflood to be law ; and it has l;)een efta- 
 blilhed confiftently with principles, and with the 
 fpirit of an Englifli policy : for in Britain, the 
 infurer undertakes no breach of contract, except 
 what arifes from fraud. He is not refponlible 
 fox xht faults of mailer or crew, any more than 
 he is for thofe of the aflured themfelves. Every 
 departure from the policy, (unlefs it amount to 
 haratry)^ is equally beyond the terms of the bar- 
 gain, whether it arifes from the mailer, or from 
 his employers. 
 
 This conclufion may be gathered from a va- 
 riety of adjudged cafes in the Englifli courts. 
 But in the two following memorable inftances, 
 the point was exprefsly decided. Thefe two ca- 
 fes likewife afford illuftrious precedents upon 
 the whole doctrine of alteration and deviation. 
 
 Steven 
 
 * In Holland, an afTured o'wner cannot infare againfl ha- 
 ratry of majler, hnt fault only. See above. 
 \ Bynkerjh. /. 4. c. 8. ^ejl. Jur. Priv.
 
 456 Insurance Contract, how dissolved. 
 
 Steven and Co. agaiTift Douglas. 
 
 John Douglas^ merchant in Glafgow, infured 
 ■Steven and Co. to the amount of L. 80 Sterling 
 ** on goods, by the Belfajl Trader^ at and froiH 
 " Belfajl to Greenock or Port-Glajgow.''' On 
 the nth December 1770, the veflel had failed 
 from Belfajl Loch; and on the 12th, the fame 
 day on which the policy was underwritten, ftie 
 was totally wrecked on the coaft of Scotland, 
 near the village of Girvan in AyrfhirCy and eve- 
 ry perfon on board perifhed. 
 
 In an a^ion on the policy, before the Deaii 
 of Guild of Glafgow, Mr Douglas pleaded devia- 
 tion, or rather that the veflel had never failed on 
 the voyage infured. A proof was allowed ; but 
 the purfuer ftopt it, by an advocation of thes 
 caufe to the Court of Seflion. 
 
 It came before Lord Kennet, as Ordinary. 
 The underwriter gave in a condefcendence * of 
 the fads he pleaded in defence ; in which he 
 fet forth, that a wilful variation vacates a poli- 
 cy ; — that the veflel, in this cafe, had not failed 
 on the voyage infured from Belfajl to Clyde, but 
 on a diflerent voyage, from Belfafl to Lochryan 
 and Clyde ; — in the courfe of which, and du- 
 ring the deviation, Ihe was loft ; that this varia- 
 tion was not only known to the fliip-owner, but 
 public in Belfafl: eight or ten days before the 
 infurance. 
 
 The 
 
 * A particular.
 
 Alteration. — Deviation. 457 
 
 The afliired, without admitting the fads al- 
 leged, denied that they were relevant *. He 
 argued, that the underwriter had not fpecified 
 enough to infer an actual deviation, but only an 
 intention to deviate ; — that, fuppoling it proved 
 that the {hip failed for Locbryan, and that this 
 was a deviation, yet that the afTured having ad- 
 ed optima Jide, and communicated all the intelli- 
 gence they had, the policy muft be valid ; and 
 if a deviation has taken place, without the af- 
 fured'*s accejjion, it is the undq^-writer who muft 
 be liable in the firll place, and may make good 
 his recourfe againft the owner or fhipmafter, as 
 he beft can ;— that if the fliipmafter deviates, to 
 the prejudice of the aflured, it is a deceit or im- 
 pojition on them, and therefore baratry. It is 
 not lefs a deceit that the fhip-owners are accef- 
 fory. 
 
 Authorities founded on Magens^ ^If^y-, § 46.; 
 Ord. of Amjl. No. 517.; of Middleb. No. 177. ; of 
 Rotterd, No. 258. ; ofStockh. No. 1042. ; Beawes* 
 Lex Merc. Red. Many of thefe make the diftindioii 
 between an afTured owner ofjhip and Jlnpper of 
 goods. 
 
 152^ Lord Ordinary, wifhing to have the opini- 
 on of mercantile people, a cafe was made up, by 
 parties, fubftantially agreeing with the defend- 
 er's condefcendence j and upon it, three mer- 
 chants 
 
 * Inferred the conclufion of law founded upon them.
 
 458 Insurance Contract, how disSglveDc 
 
 chants in Edinburgh, converfant in infurances, 
 Mr Alexander, Mr Hovjlon, and Mr Kinnear, gave 
 a report in favour of the almred. 
 
 The Lord Ordinary found, " that the defend- 
 " er has not condefcended on any thing fuffi- 
 ** cient to free him from payment of the fum un- 
 ** derwritten ; therefore refufes a proof, and de- 
 *' cerns againft him, ^c.'* 
 
 In a reclaiming petition, Mr Douglas produced 
 a variety of authorities to prove the effedt of a 
 variation. Coke v. Town/on ; Salijbury v. Town- 
 fon ; Fox v. Black ; Burr. vol. 4. p. 347. ; M^Nair v* 
 Coulter ; Roccus^ p. 165. and 207. with the opini- 
 ons of fome perfons in England converfant in in- 
 furance-law. 
 
 At advifing this petition with anfwers, it feem- 
 ed to be the opinion of feveral judges, that an 
 actual deviathn was neceffary to vacate the poli- 
 cy. And great doubt was exprefled of the poffi- 
 bility of proving actual deviation, when nobody 
 had been faved from the wreck ; and it behoved 
 to be uncertain what was the effed; of intention, 
 and what of Itrefs of weather. 
 
 Several were inclined to adopt the opinion, 
 that in order to vacate a policy, the affured mufl 
 be acceffory. — And the different lituation, in 
 this refpedt, of an affured owner of fliip, and 
 Ihipper of goods, was mentioned. 
 
 A judge, high in office, faid he was moved by 
 the opinion of the London underwriters, and by 
 the nature of the contract, to think otherwife. 
 
 The
 
 Alteration. — Deviation. 459 
 
 The voyage infured is ** from Belfaft to Clyde** 
 not ** to Lochryan.'*'' The aflured may recover 
 againfl the lliipmafter, not againft the under- 
 writer ; becaiife there is no contra^. 
 
 This lall opinion prevailed. And the Court 
 firft allowed Mr Douglas to produce a fuller con- 
 defcejidence, and upon adviling it with anfwers, 
 " allowed a proof;" recommending it to parties 
 at the fame time, to procure full information 
 with regard to the London pradlice. The pur- 
 fuer reclaimed j — but the Court adhered. 
 
 Upon proof, it was completely eftablijfhed, 
 that although the veifel had been advertifed for 
 Greenock, and her clearances, as well as the bill 
 of loading fent to Steven and Co. had been for 
 that port only, the fliip-owner, a Mr Mitchell^ 
 had taken in a conjignment of hideSy and a terce 
 of beef for Stra?iraer, at the head of Lochryan \ 
 that thefe had been loaded uppermoft to be firft 
 difcharged. A Dublin newfpaper was produ- 
 ced, to prove that the wind was W. S. W. for a 
 track of time, before and after the 12th Decem- 
 ber. And three fhipmafters fwore, that, infuch 
 a windy the proper courfe to Clyde is away from 
 the coaft of Ayr/hire, and to the eaft of the Rock 
 of Ailfa. The defender produced fatisfadlory 
 and undifputed evidence of the London prac- 
 tice in his favour. 
 
 Informations being ordered upon the proof, 
 the purfuer ftated, that there was no proof of 
 either the aflured, or his agent at Belfaft, know- 
 ing
 
 460 Insurance Gontragt, how dissolved. 
 
 ing any thing of the intention to vary from the 
 policy ; and that the evidence of aftual devia- 
 tion was not conclufive. 
 
 The Court were almoft unanimous, from the 
 confideration, chiefly, of the London pradice, that, 
 in order to vacate a policy, it was not neceffary 
 the aflured (hould be accelTory. A great majo- 
 rity thought it fufficiently proved, from the whole 
 circumftances, that the intention to vary had here 
 actually been carried into execution. One judge 
 obferved, ' It is fufficient, to have the efFed of a 
 
 * deviation, that the velTel was dejlined for Stran^ 
 
 * raer. This is the circumftance founded on by 
 
 * the London infurers. " If bound for Stranraer,''^ 
 fay they, ^* the policy is vacated." — No matter 
 
 * where fhe was loft.'r^ 
 
 The Court ^' found the deviation from the 
 " voyage to Greenock proven ; therefore fuftain- 
 *' ed the defences," &c. Dec. 20. 1 774. — The pur- 
 fuer reclaimed upon this point, that there was no 
 fufficient evidence of adlual deviation. The 
 Court, upon adviling the petition, with anfwers, 
 refufed the defire of the petition, and adhered *. 
 
 Wilson and Co. againjt Elliot, and others. 
 
 Wilfon and Co. merchants in GlaJgoWy having 
 occalion to fend fome tobacco to HuUy applied to 
 the Shipping Company at Carron, for freight. 
 
 Having 
 
 * CoUefted'from the printed papers, and notes of the coun- 
 fel for Steven and Cp.
 
 Alteration.— Deviation. 461 
 
 Having forwarded their tobacco, they were ad- 
 vifed by that Company, " that it was (hipped 
 ** aboard the Kingjion, which would fail next 
 " day." At the fame time, bills of loading were 
 fent, but neither the letter covering thefe bills of 
 loading, nor the bills themfelves, nor any letters 
 prior or fubfequent, nor any advertifement, made 
 mention of the velTel's being to touch at any port 
 on her way to Hull. She failed on the 4th Fe- 
 bruary 1774. 
 
 On the 9th February, Mr Wilfon applied to 
 an infurance-office in Glafgow for a policy on 
 this adventure ; and having obfcrved, that thefe 
 coalling Carron vefTels fometimes touched at dif- 
 ferent ports in their voyage, he conceived his 
 order in the following words : •* Pleafe infure 
 *' for my account, per the Kingjlon, George Fin- 
 ** lay mailer, from Carron to HuUj with liberty 
 ** to call as ufual, fourteen hogflieads tobacco, 
 *' at L. 38, 10 s. per hogfhead, value in all 
 " L. 539." He did not reflrid the broker to any 
 premium. 
 
 The broker Ihewed this order to Coulter, a ju- 
 dicious and experienced underwriter, who re- 
 fufed to lign it, with the general claufe of cal- 
 ling as ufualy and defired an explanation. The 
 broker, to remove this objedion, obferved, that 
 he fuppofed thefe veiTels ufually called at Leith ; 
 upon which Mr Coulter agreed to fign the po- 
 licy, if filled up, ** with liberty to call at the 
 ^^ fort of Leith," The broker accordingly, 
 
 M m m without
 
 462 Insurance Contract, how dissolved. 
 
 without confulting the owner of the goods, 
 filled up the policy, " with liberty to call at the 
 " port of Leith y" upon which it was under- 
 written by Mr Coulter. It was afterwards fub- 
 fcribed by other underwriters, without know- 
 ing thefe circumflances. The merchant, how- 
 ever, got no account of this alteration of his 
 order, till fome days after the infurance was 
 made, and a lofs incurred. The fhip failed 
 from Carron, did not call at Leith, but, by di- 
 rection of the owners, went into Morifon^s Haven, 
 a port about fix miles beyond Leitb, where flie 
 ftaid four days, and took in goods. She after- 
 wards returned from Morifon's Haven into the 
 diredl courfe of her voyage ; and was on the 
 loth February totally loft o^ Holy IJland. 
 
 The affured fhipper of goods fued tlie under- 
 writers, the owners of fhip, and the infu- 
 rance-brokers, before the Court of Admiralty 
 in Scotland. 
 
 In the queftion between the alTured and un- 
 derwriters, the Judge-admiral " having con- 
 ** fidered the whole circumftances of the cafe, 
 " and, in particular, that it is not alleged by the 
 *' defenders, that the purfuers were in the know- 
 " ledge of the Jhip being intended to put into Mo- 
 " rifo7i^s Haven, repels the defences, ^<r." He 
 afterwards allowed a proof, which, however, the 
 underwriters declined to adduce ; and he pro- 
 nounced the following judgment : " Finds, that 
 
 **ii\
 
 Alteration. — Deviation. 463 
 
 " in all cafes of infurance of goods on Ihip- 
 " board, (belonging to others than the owners* 
 ** and mafter of the fhip,) it is a general rule in 
 ** law and pra6tice, that the infurance fliall be 
 " effedual, although the lofs may have happen- 
 ** ed in a deviation from the courfe of the voy- 
 ** age, upon which infurance is made, the in- 
 *^ fured not knowing of, nor confenting to fucb de- 
 *' z'iation; and finds, that at the making of in- 
 *' furance upon fuch goods on fhipboard, it may 
 *' be agreed between the parties, that, in the 
 *' event of a deviation not allowed of in the po- 
 *' licy, the infurance fhall then ceafc and ter- 
 " minate, and not be further effedual for the 
 " remaining part of the voyage ; but finds, that, 
 ** in the prefent cafe, there are not fads fuffici- 
 " ent to infer, that it was agreed the infurance 
 " was to terminate, and be no further efledual, 
 ** in cafe of a deviation for the remaining part 
 *' of the voyage ; and further, having confidered 
 " that the fiiip the Kingjlon, after going into Mo- 
 '* rifon's Haven, and failing from thence, did at- 
 ** tain to, and was in the direct courfe of the 
 *• voyage from Carron Wharf to Hull, where flie 
 *' was wrecked -, finds, upon the whole, that the 
 *' defenders are liable, ^^r." 
 
 The caufe was brought by fufpenfion before 
 the Court of Sellion ; and Lord Alva reported 
 it to the whole Lords, when one of the grounds 
 of the Judge-admiral's decifion, that the devia- 
 tion
 
 464 Insurance Contract, how dissolved. 
 
 tion bad been without the knowledge of the ajfured, 
 was entirely given up. 
 
 For the underwriters, it was argued. That this 
 was an intentional deviation from the courfe of 
 the voyage infured, which muft vacate the poli- 
 cy; Pelly V. R. Excb. AJf. Co. ; Macnair againjl 
 Grahame and Coulter ; Coke contra Townfon ; Salis- 
 bury contra Townjbn. — The rifk has been increa- 
 fed ; for Morifon's Haven is a more dangerous 
 port than Leith ; — calling there implied a dif- 
 ferent cargo, and perhaps greater delay in load- 
 ing. But it is immaterial what was the hazard 
 of calling at Morifon's Haven ; it was not the 
 precife adventure undertaken. If the fliip had 
 refrained from calling at Morifon's Haven, it is 
 a queftion whether fhe would have met with the 
 ftorm. In this cafe, to touch at Morifon's Ha- 
 ven, or any other port but Leith, was even par- 
 ticularly provided againft ; for Coulter refufed to 
 fign, with a general liberty of calling ; and the 
 infertion of Leith, in particular, implies an ex- 
 clufion of every other port. 
 
 The aflured argued, that a policy ought to 
 meet with an equitable conftrudtion in their fa- 
 vour ; and therefore a deviation ought not to 
 vacate the policy, when it appeared to have been 
 productive of no prejudice to the underwriter. 
 In this cafe, the variation was rather nominal 
 than real ; Morifon's Haven was fo near, it 
 could fcarcely be faid to be out of the courfe 
 infured. And no advantage was taken of the 
 
 underwritepj
 
 Alteration. — Deviation. 465 
 
 underwriter ; for the rifk was not increafed, the 
 ufual premium of a voyage from Carron to Hull 
 being the fame, whether they had liberty to touch 
 at Morifon's Haven or not. And no lofs did in 
 fad arife to the infurers from the fuppofed devia- 
 tion, as the vefTel had returned to, and was loft in 
 the courfe of the voyage infured. When this is 
 the cafe, it has been decided, that a deviation fhall 
 not vacate the policy ; Kinloch and Hog v. Bogle 
 and Scot. Neither can the infurers found upon 
 the argument, that the lofs may have happened 
 in confequence of the delay at Morifon's Haven ; 
 for the vefTel was allowed to call at Leith, with- 
 out any limitation of time in flaying there ; the 
 rilk of the voyage being prolonged, by calling 
 at a port in the courfe of it, was clearly under- 
 taken by the infurers ; and it made no difference 
 of hazard, whether that port was Leith or Mori- 
 fon's Haven. 
 
 Befides, the underwriters were guilty of fault, 
 and improper conducl, in perfuading the broker 
 to vary from what they knew to be his in ft ruc- 
 tions ; particularly after they knew that the ftiip 
 had failed, and her deftination confequently was 
 irrevocable. An infurance-broker is the agent 
 of the underwriter, and under his influence. 
 
 •The opinions of a great number of merchants 
 and infurers at London and Leith v/cre offered 
 in favour of the aft'ured. 
 
 Obfervcd on the Bench. — " No prejudice in- 
 ** curred by going into Morifon's Haven. — Dan- 
 
 *' ^erous
 
 466 Insurance Contract, how dissolved. 
 
 " gerous and inconvenient to merchandife, were 
 " an interpretation fo literal to be adopted. — 
 " The going into Morifon's Haven not fo im- 
 '* portant as to conltitute a different voyage (as 
 " had been the cafe in Steven againjl Douglas). — 
 *' Improper behaviour of the infurers, particu- 
 " larly after they knew the veflel had failed. 
 " The Judge-admiral's decree, however, goes on 
 ** a wrong ground." 
 
 The Court, by a great majority, " Having 
 " conlidered the whole circumltances of the 
 ** cafe, repelled the defences," 8cc. *. 
 
 In a reclaiming petition, the underwriter 
 ftrongly urged, — That although a policy ought 
 to meet with a fair conllrudtion, according to 
 the meaning of parties, yet the inllrument is the 
 medium by which that intention mufl be judged 
 of. It is immaterial what is the real rilk at- 
 tending the deviation ; whether greater, equal 
 to, or even lefs, than that of the voyage infured ; 
 it mull be the fame individual rilk ; for other- 
 wife it may be greater in the infurer's opinion. 
 Beiides, the fituation of parties calls for a ftrid: 
 adherence upon the part of the aflured. There 
 can be no difference between a great and a 
 fmall deviation ; this admits of no rule, and 
 would involve infurance in total uncertainty. 
 It is a miftake that a deviation cannot vacate 
 the policy, unlefs the lofs happen in the courfe 
 of it. The contrary has been found j Fox v. 
 
 Black* 
 
 * Lords Hailes and Monboddo of a contrary opinion. — 
 Lord Kames doubtfuL
 
 Alteration? — Deviation. 467 
 
 Black. — Khiloch v. Bogle is not applicable. The 
 infurance is void from the moment of the devia- 
 tion, and cannot revive without a new bargain. 
 
 Neither is there any room for blame upon the 
 infurers, becaufe they refufed to fign the policy, 
 as it was firft drawn out, agreeably to the bro- 
 ker's inftrudions. The broker is not the agent 
 of the underwriter, but of the aflured, to whom 
 he muft be refponlible, if he departs from his 
 order ; and he muft judge for himfelf how far 
 he can do this with propriety. There is no col- 
 lulion alleged in the prefent cafe. It is un- 
 reafonable to find fault with any man for refu- 
 fing to fign a contract, until the conditions of it 
 are rendered agreeable to his own inclination. 
 
 Upon advifing this petition, with anfwers, the 
 Court, by a great majority, adhered^ \ March 7. 
 17761. 
 
 The underwriters appealed ; and the Houfe of 
 Peers "ordered and adjudged, that the interlo- 
 " cutors complained of be reverfed; and it is 
 *' declared, that the refpondents are entitled to 
 *' a return of the premiums paid by them to the 
 " appellants." 25th Nov. 1776. 
 
 The aflured's claim againft the fliip-owners 
 and the infurance-broker, was fubmitted to ar- 
 bitrators, who found the broker liable. 
 
 Sect. 
 
 * Lords Kames,Monboddo, Hailes, alter. Lord Kennet 
 doubtful. 
 
 f From the materials of the late Mr Profeflbr Wallace^ 
 coUedted in order to a report of the cafe.
 
 468 Insurance Contract, how dissolved. 
 
 Sect. 2. EffeSl of the AJfured falling Jh or t of the 
 exprefs Conditions of the Policy, or o/* Non-per- 
 formance. 
 
 1. The principles formerly mentioned, with 
 regard to the efFeil of a variation from the terms 
 of a policy, may be applied with ftill greater 
 force, or rather, their application is more ob- 
 vious, in cafes of non-performance ; the latter be- 
 ing a departure from an exprefs, the former 
 from an implied obligation only. 
 
 If the aflured is not at liberty to touch at any 
 port that is not precifely pointed out ; — if he can 
 execute no meafure, with regard to which the 
 policy is lilent ; much lefs can he be permitted 
 to violate the exprefs provifions of the agreement. 
 That neither party Ihall aflume a latitude of in^ 
 terpretation, is coniiftent with expediency in 
 matters of infurance : That they ihall adhere to 
 the declared conditions of the policy, is agree- 
 able to thofe rules which govern the explana- 
 tion of ordinary contracts. 
 
 2. Since a flrid adherence to the terms of an 
 infurance-policy, is incumbent upon parties, it 
 becomes of importance to fix, with precifion, 
 ijahat is a part of the policy, and what is not. 
 
 In
 
 Non-performance of Warranties. 469 
 
 in the communications that take place with re- 
 gard to the fubjed: of the bargain, to afcertain 
 what exprellions and claufes are to be conlidcr- 
 ed as eflential conditions of it, and call for an 
 implicit obfervance. 
 
 There may be various communications be- 
 tween the affured and the underwriter, which 
 are not to be confidered in that light. It is 
 proper, and perhaps requifite, that the affured 
 fhould make a full difcovery of his intelligence, 
 with regard to the nature of the fubjecl, and the 
 extent of the rifk. He may explain his intentions 
 and views in the adventure ; he may difcover 
 his belief and opinions, his wilhes and expedta- 
 tions, his hopes and apprehenfions with regard 
 to it. By fo doing, he may intend to give the 
 infurer every opportunity of forming a fair and 
 complete eftimate of the peril he undertakes ; 
 but without propofing to preclude himfelf from 
 fuch variations in his fyftem of condud, as cir- 
 cumftances may render neceffary, or to produce 
 a reliance upon the literal terms of the informa- 
 tion he communicates. Such reprefentations of 
 fadls, intended merely to communicate informa- 
 tion concerning his views, are carefully to be 
 diftinguifhed from warranties^ or effential condi- 
 tions of the contradt. 
 
 In treating, upon a former occafion, of the ef- 
 fedls of fraud and error, an opportunity was ta- 
 ken to confidcr how far the affured is refpon- 
 fible for the truth and accuracy of thofe repre- 
 
 N n n fentatiom
 
 470 Insurance Contract, how dissolved. 
 
 Jentations of fadls. He mufl not, it was obfer- 
 ved, miilead the underwriter by intelligence that 
 is falfe, or that is materially erroneous. What is 
 held to be a material error in a reprefentation of 
 fadls, was likewife illuflrated by decifions in fe- 
 veral different cafes. 
 
 In diflinguifhing a reprefentation^ or what is 
 intended merely as a piece of collateral intelli- 
 gence, from a warranty which mull be Itridly 
 adhered to, as a condition of the contrad, the 
 chief objed muft be to find a precife and accu- 
 rate rule. The rule laid down by Lord Mans- 
 field, and by the praftice of England, is pre- 
 cife, accurate, and fimple. *^ Whatever is writ- 
 ** ten on the Jhme paper with the policy, is a 
 ^' warranty y This holds even as to claufes up- 
 on the back or margin of the policy. 
 
 On the other hand, every verbal communica- 
 tion^ and every claufe engroffed upon a feparate 
 paper ^ is held to be a mere extraneous reprefen- 
 tation. A feparate writing does not form a 
 warranty, although it Ihould have been fhown 
 to the underwriters at the time of figning ; nay, 
 even though it Ihould have been rolled up in the 
 policy, or wafered to it. 
 
 The decifions, to be quoted upon this head, 
 will likewife ferve to illuftrate with what pundi- 
 tious flriclnefs an exprefs warranty mull be com- 
 plied with, 
 
 Pawsoi^
 
 Non-performance of Warranties. 471 
 
 Pawson v. Ewer. 
 
 Paw/on V. Ewer, Fawfon v. S7ieU, and Pawfo?i 
 'V. Watfo7i, which were all alliens on the fame po- 
 licy, were argued on a motion for a new trial, 
 in the Court of King's Bench. The cafe was this : 
 
 The broker who made the infurance, fhewed 
 to fome of the underwriters a paper detached 
 from the policy, containing inflruclions relative 
 to the force with which the fhip was to fail, viz. 
 *' 12 gU7is, arid 20 meny There were no guns 
 or men on board when the policy was fubfcribed. 
 Mr Thornton^ the firft underwriter on the policy, 
 had feen the paper (and he had paid.) Watfon 
 and Snell had not feen it ; Ewer, who had fub- 
 fcribed after them, had ; but they all under- 
 wrote at the fame premium, for fuch a velTel as 
 that in queftion, when failing without force. 
 
 The fhip actually failed with only 10 guns, 
 (four pounders,) and fix fwivels ; and with only 
 16 men, and feven boys, befides paflengers. It 
 was proved, that boys are entered on the fliip's 
 books, and confidered on fnipboard as men ; and 
 that 10 guns and 16 fwivels are of greater force 
 than 12 guns. That, upon the whole, the fhip 
 was of more force than fhe would have been, if 
 the written inftrudions had been fpecially adhe- 
 red to. 
 
 There were verdicts for the plaintiffs ; but, on 
 the motion for a new trial in one of the caufes, 
 which was to determine the reft, it was contend- 
 ed, on the part of the defendant, — That the in- 
 
 ftrudions
 
 47^ Insurance Contract, how dissolved;, 
 
 ftrudions (hewn to the firft underwriter, (upon- 
 whom in general all the others rely,) being in 
 writing, were to be confidered as a warranty^. 
 which muft be ftridly complied with ; and that 
 it had not been complied with in this cafe. The 
 counfel for the plaintiff, on the contrary, main- 
 tained, in the Jirjl place, that the written paper 
 being feparate from the policy, was only a repre- 
 fentation, and that it was fufficient to comply with 
 it in fubftance, or to do what was equally bene- 
 ficial to the underwriters. But, in the fecond 
 place, that the terms had been ftridly complied 
 with ; for that fwivels were a fpecies of guns, and 
 boys, in the maritime fenfe, were reckoned men, 
 or feamen, as oppofed to paflengers. 
 
 Lord Mansfield faid, — There is no dillinc- 
 tion better known than that between a warranty 
 or condition, which makes part of a written po- 
 licy, and a reprefentation of the cafe. Where 
 it is a part of the written policy, it muft be per- 
 formed ; as if there be a warranty of convoy, 
 there mull be a convoy; (nothing tantamount 
 will do, or anfwerthe purpofe ;) it muft be ftria^ 
 ly performed, as being part of the agreement ; 
 for there, it might be faid, the party would not 
 have infured without convoy. But, as by the 
 law of merchants, all dealing muft be fair and 
 honeft, fraud infeds and vitiates every mercan- 
 tile contraa ; therefore, if there is fraud in a re- 
 prefentation, it will void the policy, as a fraud, 
 but not as a part of the agreement. If, in a life 
 
 policy.
 
 Non-performance of Warranties. 473 
 
 policy, a man warrants another to be in good 
 health, when he knows, at the fame time, he is 
 ill of a fever, that will not void the policy ; be- 
 caufe, by the warranty, he takes the rilk upon 
 himfelf. But, if there is no warranty, and he 
 fays " the man is in good health," when, in 
 fad, he knows him to be ill, it is falfe. So it is, 
 if he does not know whether he is well or ill ; 
 for it is equally falfe to undertake to fay that 
 which he knows nothing at all of, as to fay a 
 thing is true, which he knows is not true. But 
 if he only fays, '* he believes the man to be ia 
 " good health," knowing nothing about it, nor 
 having any reafon to believe the contrary, there, 
 though the perfon is not in good health, it will 
 not void the policy ; becaufe the underwriter 
 then takes the rifk upon himfelf. 
 
 It is not the ufage to confider inJlru6lions as 
 a part of the policy ; and it does not appear, that, 
 in this cafe, the underwriters had confidered the 
 circumflance of the veflel having twelve guns and 
 twenty ?nen, as a condition they wiflied ftriftly 
 adhered to ; otherwife, why did they not take care 
 to have that put hito the body of the contraH. Be- 
 fides, the different infurers, thofe who knew this 
 circumflance, and thofe who did not, had all un- 
 derwritten at the fame premium. It was clear- 
 ly only a reprefentation of the fadl, that the vcffel 
 was ajhip of force ; and, fo far as feemed rnate- 
 rialy the information which it was intended to 
 
 convey,
 
 474 Insurance Contract, how dissolved. 
 
 convey, appeared to have been well founded.— 
 The rule difcharged. 
 
 Afterwards, a Counfel having aiked, at the re- 
 queft of the underwriters, whether it was the opi- 
 nion of the Court, that, " to make written in- 
 *' ftru6lions valid and binding as a warranty, 
 *' they mufl be inferted in- the policy ?" Lord 
 Mansfield anfwered, " That it undoubtedly 
 " was." — Cowper's Reports, May 16. 1778. B. R. 
 
 Bean againjl Stupart. 
 
 The plaintiff infured a fliip, called the Mar- 
 tha^ " at and from London to New Tork,'''' the 
 voyage to commence from a day fpecified ; and 
 on the margin of the policy were written thefe 
 words, — " Eight nine-pounders^ with clofe quar- 
 " terSf 6 Jtx-pounders on her upper decks, 30 fea- 
 " men, bejides paJJejigersJ''' — The fhip was taken 
 by an American privateer. 
 
 In an adion upon the policy, the defence fet up 
 was, that there were not 2,^feamen on board the 
 fhip ; and, in fad, it appeared upon the evidence, 
 that, to make up that number, the plaintiff 
 reckoned the fteward, cook, furgeon, fome boys 
 and apprentices, and fome perfons defcribed as 
 men learning to be feamen ; and that only 26 
 perfons had ligned the Ihip's articles. It alfo 
 appeared, that there were feven or eight paffen- 
 gers on board. 
 
 It fcarcely feemed to be difputed, that this 
 claufe being written on the fame paper with the 
 
 policy.
 
 Non-performance of Warranties. 475 
 
 policy, was a warranty, and not a reprefentation ; 
 and therefore required to be ftridly complied 
 with ; and Lord Mansfield delivered his opi- 
 nion to that purpofe *. 
 
 A fpecial jury found a verdid for the plain- 
 tiff; and the defendant having obtained a rule 
 to fhew caufe, why there fhould not be a new 
 trial, — upon argument before Lord Mansfield, 
 the rule was difcharged. Douglas'' Reports, 
 i^tb November 1778. 
 
 In a note to the decifion Bean againjl Stupart, 
 in Douglas' Reports, the following cafes are 
 ftated. 
 
 " At the fittings at Guildhall, after M, 19. Geo. 
 III. in a caufe of Kenyon and Ashton v. Ber- 
 thon, the following words were written tranf- 
 verfely on the margin of the policy, " In port 
 *' 20th of July 1776." The fhip was proved to 
 have failed the 18th of July ; and Lord Mans- 
 field held that this was clearly a warranty; 
 and though the difference of two days might 
 not make any material difference in the rilk, yet 
 
 as 
 
 * Witnefles were examined to explain what is generally 
 underftood by the \sovdfeamen j and it was ellablifhcd, that, 
 at the Cuftomhoufe and Greenwich hofpital, boys are inclu- 
 ded in that word. Lord Mansfield obferved, that, in the 
 prefent cafe, the term feamen Teemed to be oppofed to paf- 
 fengers, and not to boys and landmen j and, in that fcnfe, 
 the word feemed to include boys as well as men. Tlicre was 
 another point, fufficiently clear, decided in this ca/e, — That 
 Iq the cirgumftances, the afTured was entitled to abandon.
 
 474 Insurance Contract, how dissolved. 
 
 as the condition had not been complied with, 
 the underwriter was not liable. 
 
 ** But, 17720, Though a written paper be wrapt 
 up in the policy, when it is brought to the un- 
 derwriters to fubfcribe, and fliown to them at 
 that time *, or, ido. Even though it be wafered 
 to the policy, at the time of fubfcribing, ftill it 
 is not in either cafe, a warranty, or to be con- 
 lidered as a part of the policy itfelf, but only as 
 a reprefentation.'* 
 
 " The flrfl: of thefe points occurred in a caufe 
 of Pauson v. Barnevelt, tried before Lord 
 Mansfield at Guildhall, at the fittings in Tri- 
 nity term i8. Geo. III. where the policy was the 
 fame as in t|ie cafe Pawfon v. Ewer* The coun- 
 fel for the defendant offered to produce witnefles 
 to prove that a written memorandum inclofed, 
 was always confidered as a part of the policy. 
 But his Lordlhip faid it was a mere queflion of 
 law, and would not hear the evidence ; but de- 
 cided that a written paper did not become a 
 flri(5l warranty, by being folded up in the pq^, 
 iicy." 
 
 " The fecond occurred in Bize v. Fletcher, 
 tried at Guildhall after £. 19. Geo. III. where 
 it appeared that at the time when the infurers 
 underwrote the policy, a flip of paper was wafer- 
 ed to it, defcribing the Hate of the fhip as to re- 
 pairs and ftrength, and alfo mentioning feveral 
 particulars of her intended voyage ; which par- 
 ticulars, in the event, had not been complied 
 
 with
 
 NON-PERFOP.MANCE OF WARRANTIES. 477 
 
 with. Lord Mansfield ruled that this was on- 
 ly a reprefentation ; and if the jury fhould 
 think there was no fraud intended •, and that 
 the variance between the intended voyage, as 
 defcribed in the flip of paper, and the a<flual 
 voyage, as performed, did not tend to increafe 
 the rifle to the underwriters, he diredled them 
 to find for the plaintift', who accordingly had a 
 verdicl." 
 
 3. Of the different conditions ftipulated by 
 the underwriter, fome are intended to diminifli, 
 or remove, the war rifli, or peril of capture. 
 Such are the warranties that the fliip fliall have 
 conmy \ — that flie fliall have convoy and arrive ; 
 that flie fliall be a neutral Jhip ; — or a flag of 
 truce. Others are calculated to avoid Xhtfea rijk 
 in particular fituations ; fuch is the condition 
 that the veflel fliall fail before a day certain. 
 
 Thefe warranties are expreflTed in two dif- 
 ferent ways. Sometimes in the form of an ab- 
 folute condition, without which there fliall be 
 no infurance. At other times, they are optional 
 to the aflurcd ; and are introduced not as a cir- 
 cumftancc cflential to the bargain, but which 
 fliall have the cfled to alter the terms of it, by- 
 producing a return of premium, if the condition 
 be not fulfilled. Thefe two modes of introdu- 
 cing a condition have the fame effed with regard 
 to the view now under confideration. It feems 
 
 O o o proper
 
 47? Insurance Contract, how dissolved. 
 
 proper, however, to explain feparately the differ- 
 ent warranties above mentioned, before examin- 
 ing thofe general points in which they all agree. 
 
 4. The moll important warranties that occur, 
 are thofe intended to fecure underwriters, in 
 time of war, againft the extraordinary rifk of 
 capture by the enemy. In time of war, the pe- 
 ril of capture becomes infinitely greater to mer- 
 chantmen than any other danger whatever ; 
 and the premium upon infurance rifes accord- 
 ingly. It obtains the name of the long premium^ 
 in oppolition to the Jhort or peace premium. Of 
 thefe warranties the moft common and the moft 
 important is a warranty of convoy. 
 
 By a convoy is underftood a force confifting of 
 one or more armed fhips in hollility with the 
 enemies of the veflel infured. 
 
 They muft likewife be commiffioned by the 
 public to undertake her defence. It is not fatif- 
 fying a claufe of convoy, that a merchant-man 
 accidentally fails in company with a man of 
 war, and is protedted by keeping her company. 
 The armed fhip muft be inftruded by Govern- 
 ment to ad for the fpecial fecurity of the velTel 
 infured. 
 
 Thus, in the cafe Hubbert v. Pigow, (to be 
 afterwards ftated) the Arundel, the vefTel infured, 
 failed in company with the Glorieux man of 
 war. It was found that the Glorieux was not 
 one of the convoy appointed by Government, 
 and therefore that the alTured had not fulfilled 
 
 the
 
 Non-performance of Warranties. 479 
 
 the condition. Afterwards, in a fubfequent 
 queftion upon the fame cafe, Hubbert v. Bain- 
 bridge, upon new evidence being produced, it 
 appeared that the Glorieux adlually was a part 
 of the convoy, and a verdidt was found for the 
 aflured. 
 
 Hubbert againjl Newnham." 
 
 The Withywood was infured *' at and from 
 ** Jamaica to London, warranted to depart with 
 ** convoy for the voyage.'''' She faiJed from Salt- 
 river on the 27th July ; and arrived at Blue- 
 fields on the 29th. Admiral Graves, with the 
 convoy, had left Bluefields on the 26th, four 
 days before the ufual time : But the Withywood 
 there fell in with the E?idytnion, a 44 gun-lhip, 
 which had been fent by Lord Rodney to affift 
 Admiral Graves, but had never Joined or re- 
 ceived orders from the latter. The Endymion ap- 
 peared to lie to for the Withywood, but they ne- 
 ver fpoke together. When the Withywood came 
 up ihe failed ; and was generally in fight till 
 the 7th Auguft, when the fleet was feen. And 
 on the 9th the Endymion, having received orders, 
 towed the Withywood into the fleet. 
 
 The Withywood having foundered in the great 
 hurricane off Newfoundland, Lord Mansfield 
 held that the Endymion was not convoy, and the 
 underwriters not liable. Verdia for the defend- 
 ant.— 1783. MS. ^^^
 
 480 Insurance Contract, how dissolved. 
 
 The objed of ftipulating for convoy, muft, 
 undoubtedly, be to obtain a fecurity againft the 
 war-rifk, during the whole voyage ; and the 
 prefumption is, that when no particular part of 
 the adventure is mentioned, the whole is intend- 
 ed. Were a partial convoy fufficient, the claufe 
 of convoy would become perfedly elufory : It 
 would be impoffible to fix a line, at which it 
 could be faid the condition had been fulfilled ; 
 and the afTured might confine his performance 
 to fo fmall a part of the voyage as would totally 
 deftroy the fecurity intended. To fail "with con- 
 Toy^ therefore, and every other llipulation for 
 convoy, means convoy for the whole voyage, un- 
 lefs the contrary be exprefsly provided. 
 
 " Warranted to depart with convoy," has 
 been refolved to import, by the ufage of mer- 
 chants, a continuance with that convoy as long 
 as may he. Lucas, 287. 
 
 Lilly and others againjl Ewer. 
 
 A policy was made on the Parker galley, " at 
 ** and from Venice to the Currant I/lands, and at 
 " and from thence to London" at a premium of 
 five guineas per cent, " to return L. 1 per cent, if 
 ** the Jhip failed with convoy from Gibraltar, and 
 ** arrived.^'' The fhip touched at Gibraltar on 
 her way home, and failed from thence under 
 convoy of the Zephyr floop of war, but the con- 
 voy v/as dellined only to go to a certain latitude, 
 about as far as Cape Finiflerre ; and accordingly 
 
 the
 
 Non-performance of Warranties. 481 
 
 the fhip and convoy feparated, and the fliip ar- 
 rived fafe at London, The only queftion in the 
 cauie was, Whether, by the terms of the policy, 
 the condition for the return of premium was, a 
 departure from Gibraltar^ with fuch convoy as 
 could be met with^ for whatever part of the voyage 
 that might happen to be, or, a departure with 
 convoy for the voyage. In an a6lion at the in- 
 flance of the afTured, againfl an underwriter, for 
 return of premium, which came to be tried at 
 Guildhall, before Lord Mansfield, and a com- 
 mon jury, a verdidl having been found for the 
 plaintiff, a rule was obtained to Ihew caufe why 
 there fhould not be a new trial. 
 
 The evidence adduced in the caufe, princi- 
 pally related to the ufage with regard to the in- 
 terpretation put by merchants upon the expref- 
 iiOTiy failing with convoy. The plaintiff produced 
 a refpeclable merchant, who underflood, that 
 failing with convoyy had a diflindl technical mean- 
 ing from faili?ig with convoy for the voyage. The 
 captain proved, that, at the time when he left 
 Gibraltar, no other convoy was to be had. Con- 
 trary evidence was produced of the ufage, in fa- 
 vour of the defendant ; and it was obferved, that 
 the natural import of the words fupported his 
 plea. Even if the words were doubtful, they 
 ought to be conftrued againfl the alfured who 
 made ufe of them. It was alfo faid, that when 
 partial convoy was meant, it had of late been a 
 frequent practice, efpecially in voyages to the Le- 
 vant.
 
 482 Insurance Contract, how dissolved. 
 
 'vant^ to fpecify how far the convoy was to come ; 
 as " convoy to the Cape, convoy to Lijbon" &c. 
 
 Lord Mansfield, from the words, had been 
 ftrongly of opinion, that the policy meant a de- 
 parture with convoy for the voyage. The par- 
 ties could not mean a departure with convoy, 
 which might be defigned to feparate from the 
 ftiip in a minute or two ; though, when convoy 
 for the whole of a voyage is clearly intended, an 
 unforefeen feparation is an accident to which 
 the underwriter is liable. His opinion had been 
 influenced by the proof of ufage upon the part 
 of the plaintiff; however, he had learnt that 
 people in the city were diffatisfied with the ver- 
 did, and think the evidence of the plaintiff's 
 witnelTes was founded on a miftake. Critical 
 niceties ought not to be encouraged in commer- 
 cial concerns ; and wherever additional words are 
 rendered neceffary, doubts and criticifms are 
 multiplied. — The rule made abfolute. — Verdidl 
 for the defendant. Douglas's Reports, 6tb Fe- 
 bruary 1779. 
 
 A variety of phrafes have been made ufe of 
 in the expreffion of this warranty ; fuch as, " war- 
 " ranted with convoy^* " to fail with convoy ;" 
 *' to depart with convoy ;" " to join convoy'' 
 
 With regard to all thefe, the general obferva- 
 tion feems applicable, that the intention of the 
 claufe is, to be proteaed during the whole voy- 
 age ; and the underwriters are not to be cut out 
 
 of
 
 Non-performance of Warranties. 483 
 
 of their complete fecurity by the difference of a 
 word. It feems to be fettled, that to fail with 
 convoy, to depart with convoy, and warranted 
 with convoy, mean the fame thing. In the cafe 
 of infurance on the fhip Commerce (Dunmore 
 againfl Allan,) lately decided by the Court of 
 Seffion, in which the veffel was infured, '* war- 
 " ranted with corn'oy,"" there was produced evi- 
 dence, that this conftrudion was agreeable to 
 the ufage of merchants in Scotland ; and the 
 Court of Seffion were unanimoufly of opinion, 
 that it was neceffary for the fliip Commerce, not 
 only to meet convoy, but to fail with convoy 
 from the port of rendezvous. 
 
 In the cafe Manning v. Gift, at Guildhall, (to 
 be afterwards Hated), there were two policies 
 on the fame fhip. In the one, fhe was warrant- 
 ed with convoy for the voyage; in the other, Ihe 
 was warranted to depart with convoy. The 
 Court thought the warranties were fubftantially 
 the fame, and took the caufes both together. 
 
 With regard to the expreffion of joining con- 
 voy, unlefs it is mentioned at what part of the 
 voyage the junction is to happen, the fame in- 
 terpretation ought to be put upon it ; and the 
 underwriter ought not to be milled by the diffe- 
 rence of a word. To join convoy, mull be inter- 
 preted at the port of rendezvous. 
 
 Although, however, in general, by convoy, is 
 
 to be underftood convoy for the voyage, yet this 
 
 rule admits of certain exceptions. 
 
 It
 
 484 Insurance Contract, how dissolved. 
 
 It was formerly obferved, that both the affu- 
 red and underwriters, mufl be fuppofed to know, 
 and to approve of the ufual and cuftomary pro- 
 cedure in the courfe of any adventure infured. 
 ** Unicuique in arte fua credendum ;" the u- 
 fages of merchants, and feafaring people, there- 
 fore, in relation to a fea- voyage, mull be for the 
 advantage of all concerned, and muft be con- 
 fidered as receiving the tacit confent of parties. 
 Thus it was formerly mentioned, that a velTel 
 might, without vacating her infurance, vary 
 from the direSl or nearejl courfe, providing fuch 
 variation was agreeable to uniform pradice. 
 
 Upon fimilar principles, although, in gene- 
 ral, a claufe of convoy implies convoy for the 
 whole voyage, from the port of loading, to that 
 of difcharge ; yet, where a certain regular con- 
 voy is cuftomary for the protection of that trade 
 in which the ftiip infured is engaged, both par- 
 ties muft obvioully have contraded with a view 
 to that particular convey, and no other. If 
 therefore it is the pradice for fuch convoy to 
 attend the merchant-man during a part of her 
 voyage only, that partial attendance will be fuf- 
 ficient to implement the condition of the con- 
 tradl. Both parties are fuppofed to know the 
 circumftances of the trade they infure ; and nei- 
 ther can the aflured be fuppofed to promife, nor 
 the underwriter to exped, any other convoy 
 
 than
 
 NON-PZRFORMANCE OF WARRANTIES. 485 
 
 than what general pradice, in the courfe of that 
 trade, has pointed out. 
 
 If therefore the cuftomary convoy is not fta- 
 tioned at the port of loading, it will be necefla- 
 ry for the veflel in lured to go in queft of her 
 confort, at the place of rendezvous. Thus, in 
 infurances from London, the convoy is often not 
 to be obtained from the Thames, but at the 
 Downs, or even at a more diilant port along the 
 coaft. In infurance from Jamaica, the convoy 
 is ufually Itationed at Bluefield's bay. In thefc 
 cafes, the warranty is fulfilled, if the merchant- 
 man joins convoy at the Downs, Bluefields, or 
 any other port of rendezvous. 
 
 In the fame manner, no doubt, when it is 
 cujlomary for the convoy to feparate before arri- 
 val at the port of difcharge, fuch feparation, at 
 the accuftomed point, is not a failure of the war- 
 ranty. Sometimes a provifion for this purpofe, 
 is made by an exprefs claufe, that the veflel Avail 
 ** join convoy at the rendezvous,'''' But it feems 
 to follow from the reafon of the thing, without 
 any ftipulation whatever. 
 
 It is an obvious confequence from thefe rea- 
 fonings, that a veflel, while flie fails in queft of 
 the convoy, to the port of rendezvous, is, in the 
 mean time, under the fecurity of the infurance. 
 If the end is undertaken, the means muft be un- 
 dertaken by which that end is to be accomplifli- 
 ed. And if ftie be taken or wrecked, before flic 
 arrive at the rendezvous, the underwriter mufl: 
 
 Ppp be
 
 486 Insurance Contract, how dissolved. 
 
 be liable. In the fame manner, Ihe is covered 
 by the infurance, after the convoy leaves her, 
 from the vfual point of feparation, till fhe arrives 
 at her port of difcharge. 
 
 It likewife naturally follows, that although a 
 velTel goes out of her direct or nearejl courfe, in 
 quell of the vjlial convoy, at the place of rendez- 
 vous, fuch procedure does not imply a deviation ; 
 becaufe an agreement of convoy implies the af- 
 fent of parties to every means that is cujlomary^ 
 in order to carry that agreement into effed, and 
 to obtain the convoy ftipulated. 
 
 Lethulier's Ca/e.—Tht defendant, at Lon- 
 don, infured a Ihip from thence to the Eaft In- 
 dies, warranted to depart with convoy. In an ac- 
 tion on the policy, the plaintiff (hews, that the 
 Ihip went from London to the Downs, and froii;i 
 thence with convoy, and was loft : — After a fri- 
 volous plea and demurrer, the cafe ftood upon 
 the declaration, to which it was objected, that 
 there was a departure without convoy ; et per 
 cur. the claufe, " warranted to depart with con- 
 '* voy," muft be conftrued according to the 
 vfage among merchants ; i. e. from fuch place 
 where convoys are to be had, as the Downs, l^c. 
 Holt, C. J. contra, we take notice of the laws 
 of merchants that are general, not of thofe that 
 are particular ufages ; it is no part of the law of 
 merchants to take convoy in the Downs. 1. Salr 
 
 keldj 4tAl' ^ic^J' 4« ^' ^^^^ ^' ^^^ ^' -^» 
 
 Bond
 
 non-i*erformance of vs^^arranties. 487 
 
 Bond v. Gonzalez. 
 A policy was to infure the William Galley in a 
 voyage from Bremen to London, warranted with 
 convoy. She failed under convoy of a Dutch 
 man of war, to the Elbe, where they were join- 
 ed by two other Dutch men of war, and feveral 
 Dutch merchant fhips ; whence they failed to 
 the Texel, where they found a fquadron of Eng- 
 lilh men of war, and an Admiral. After a ftay 
 of nine weeks, they fet out from the Texel, and 
 the Galley was feparated in a ftorm, and taken 
 by a French privateer, retaken by a Dutch pri- 
 vateer, and paid L. 80 falvage. It was ruled by 
 Holt, C. J. that the voyage ought to be accor- 
 ding to ufage; and that their going to the Elbe, 
 though in fad out of the way, was no deviation ; 
 for till the year 1703, there was no convoy for 
 fhips diredly from Bremen to London ; and the 
 plaintiff had a verdicl. ^. Salkeld 445. Feb. 14. 
 1704. 
 
 Gordon -v. Morley, a7id Campbell v. Bour- 
 
 DIEU. 
 
 On an infurance from London to Gibraltar, 
 •warranted to depart with convoy^ it appeared there 
 was a convoy appointed for that trade to Spit- 
 head ; and the fhip Ranger having tried for 
 convoy in the Downs, proceeded for Spithead, 
 and was taken in her way thither. The in- 
 furers infilled, that this being in time of a 
 French war, the fhip fliould not have ventured 
 through the Channel, but have waited in the 
 
 Downs
 
 ,488 Insurance Contract, how dissolved. 
 
 Downs for an occafional convoy ; and many 
 merchants and office-keepers were examined to 
 that purpofe. But the Chief Juftice held, that 
 the fhip was to be confidered as under the de- 
 fendants infurance to a place of general rendez- 
 vous^ according to the interpretation of the 
 words warranted to depart with convoy, Salk. 
 443, 445 ; and if the parties meant to vary the 
 infurance from what is commonly underftood, 
 they fhould have particularifed her departure 
 with convoy from the Downs. — The juries were 
 compofed of merchants, and, in both cafes, 
 found for the plaintiffs, on the ftrength of this 
 direction. Strange, 126^, 2o.GeoAl. 
 
 For the fame reafons, the particular j'?r^'«^^^ 
 of a convoy does not appear material. Parties 
 mull be fuppofed to have had in view the ufual 
 convoy, or that convoy which Government fhall 
 confider as expedient and proper for the fervice. 
 
 Manning v. Gist. 
 
 The Elifabeth was infured " from Tortola to 
 " London, ^ warranted to fail on or before the 
 '* 10th of Auguft, liJitb convoy for the voyage.''^ 
 There was another cafe between the fame par- 
 ties, in which the Ihip was «* warranted to de- 
 " part with convoy." The court thought the 
 warranty the fame in fubftance, and took them 
 both together. 
 
 It appeared that the Cyclops man of war was 
 fent from St Kitts to take care of the veffels at 
 
 Tortola,
 
 Non-performance of Warranties. 489 
 
 Tortola, and carry them to latitude 19. to meet 
 the Commodore, and the reft of the fleet. The 
 Cyclops was to go no farther than latitude 19. 
 There could be no other convoy from Tortola, 
 as the whole fleet could not pafs that way. 
 
 The Elifabeth loft her confort, after failing 
 from Tortola. It was proved that fhe neither 
 could make Tortola, nor BaJJe-terre, the rendez- 
 vous. — Verdid for the aflured plaintijSf. — On mo- 
 tion for a new trial, — 
 
 Lord Mansfield faid, — In a policy warrant- 
 ed with convoy, the force is never ftipulated, 
 but left to Government. The agreement muft 
 be conftrued by the voyage. Bajfe-terre is the 
 general rendezvous ; but, from Tortola, veflels 
 cannot conveniently go to BaJfe-terre ; and the 
 convoy cannot, without great rilk, go to Torto- 
 la. The pra6lice therefore is, to fend a ftiip to 
 Tortola, to bring the veflels to a certain lati- 
 tude ; and this latitude muft vary in diflerent 
 cafes. — Rule difchargcd. Eajh 22. Geo. 111. MS. 
 
 By a fliip having convoy, muft farther be meant, 
 that ftie fails in fuch a fituation as admits of her 
 receiving that protedlion and afliftance, which an 
 armed force is capable of aflbrding. To this 
 effect, two circumftances feem neceflary : 
 
 i/?. That the armed fliip, and the vcflcl infurcd, 
 iet fail together. What diftancc may be fuiHcicnt 
 for the purpoies of protection, is a point that 
 muft vary a good deal in diJOfereiit cafes, and 
 
 does
 
 490 Insurance Contract, how dissolved, 
 
 does not admit of an accurate rule. But one 
 thing may be laid down as fufficiently eftablifh- 
 ed, that from whatever point the convoy is war- 
 ranted, — whether from the port of loading, — 
 from the general rendezvous, — or from any 
 other point in the courfe of the voyage, — accord- 
 ing to general ufage, or fpecial agreement ;-— 
 from that point the veflel infured and convoy 
 muft fail, or attempt to fail, together. It is not 
 enough that flie overtake the convoy during the 
 voyage, nor that fhe fail before it, and be over- 
 taken. She muft join at that point where the 
 warranty is ftipulated to commence ; and fhe 
 muft make an inception of the voyage at the fame 
 time. A contrary rule would deftroy entirely 
 the utility of a claufe of convoy ; for, if the vef- 
 fel infured may fail any part of the way without 
 her convoy, where ftiall this power ftop ? If ftie 
 may fail half a league, why may ftie not pro- 
 ceed a whole league, or two leagues ? In ftiort, 
 the fame holds in this, as in every other warran- 
 ty ; unlefs the condition be interpreted ftridly, 
 it can be of no ufe. 
 
 Taylor v. Woodness. 
 
 The defendant infured the plaintiff" with a 
 warranty of convoy. It appeared, that the Com- 
 modore had made fignals the night before, for 
 failing from Spithead to St Helen's, and had 
 made repeated fignals next morning from 
 7 o'clock till 12 j notwithftanding which, the 
 
 fliip
 
 Non-performance of Warranties. 491 
 
 (hip infured had neglected to fail with him, and 
 did not fail till two hours after ; flie was taken 
 by a privateer. In an adion on the policy, the 
 plaintiff was nonfuited. Hil. 4. Geo. III. at 
 CuildhalL Park's Syftem^ 399. 
 
 .Dunmore aga'mft Gildart. 
 
 Infurance w^as made " on the freight of the 
 ^' Anna^ from her loading ports in Jamaica, to 
 ■' Clyde, warranted to fail with convoy y on or 
 ^' before the firft Auguft.*' The facts appeared 
 to be as follows. 
 
 The Anna took in her loading at Savannah la 
 Mar^ which is on the fouth fide of Jamaica, 
 only about three miles diftant from Bluefields, 
 and on the oppofite fide of a fmall cape. 
 M6ft of the other merchantmen that were ly- 
 ing at Savannah, failed upon the 23d or 24th 
 July, to join the convoy at Bluefields, The 
 Anna was not then ready ; but on the 23d, the 
 captain went over land to Bluefields, and got 
 failing orders from Captain Moriarty of the 
 Ramillies, Admiral Graves'' s own fhip. 
 
 The convoy failed from Bluefields on the even- 
 ing of the 25th, and fteered weftward pad Sa- 
 vannah, continuing in fight of the harbour of 
 Savannah from four to five o'clock of the after- 
 noon of the 25th. At that time the Anna was 
 completely ready to fail, and waited for a wind 
 to carry her out, having her anchors up, and 
 her pilot on board j but was becalmed. It dc- 
 
 fcrves
 
 49^ Insurance Contract, how dissolved. 
 
 ferves notice, that the wind from the land 
 ufually failed in the day-time. 
 
 She continued unmoored, and, by two o'clock 
 of the morning of the 26th, got clear off the 
 reef of Savannah la Mar, and proceeded after 
 the fleet with all poffible difpatch. In the af- 
 ternoon of the fame day, a frigate from the 
 north fide hove in fight ; and in the evening, 
 the captain got fight of the fleet commanded by 
 Admiral Pigot. He continued in fight of this 
 fleet the 27th and 28th ; lay to with them a 
 part of the 28th ; and, on the morning of the 
 29th, joined the fleet under the command of 
 Admiral Graves , which was the regular convoy. 
 The Anna was afterwards loft in the great hur- 
 ricane ofl" Newfoundland. 
 
 The cafe came on at Guildhall before Mr Ju- 
 
 Jlice BuLLER, who would not fuffer it to go to a 
 
 jury ; faying, the point was fettled by recent 
 
 decifions, and the plaintiff allowed himfelf to be 
 
 non-fuited, 1783. Never moved in fince. MS, 
 
 idly^ The aflured ftiip muft not only have join- 
 ed, but file muft have got failing orders ; with- 
 out which it is impolfible flie can underftand fig- 
 nals, or ad: in concert with the convoy, fo as to 
 enjoy the protedion intended. 
 
 " If any aflTurance," fays the ordinance of 
 Hamburgh, " be contained in the policy, that 
 " the fliip is to depart with convoy, then, for 
 ** fulfilling that condition, it is required, — that 
 " the convoy be adually at enmity with the ene- 
 
 " mies
 
 Non-performance of Warranties. 493 
 
 " mies of the fliip on which the infurance is 
 ** made; — that the captain who is under pro- 
 *' tection, have received a letter of hiflruElions 
 ** from the commander of the convoy ; — that he 
 " be ready to put to fea along ^\^ith the convoy, 
 " as foon as he is informed, and knows that it 
 *' will depart.'* A variety of Englifh cafes, 
 which ferve to illuftrate this, among other 
 points, ftiall be afterwards flated. 
 
 5. The fpecies of warranty hitherto mentioned, 
 that a velTel fhall have the protcclion of convoy, 
 affords by no means a complete fecurity againll 
 the war-rijk; but there is a condition fometimes 
 ftipulated, which entitles the owner of a fliip to 
 be infured upon xh.Q.Jhort premium, as it entirely 
 removes from the underwriter the peril of cap- 
 ture. This is a condition, that the fhip fliall 
 *■'' fail 'with convoy, and arrive.''^ 
 
 It is generally executed as a llipulation for a 
 return of premium, " if the Ihip fails with con- 
 ** voy, and arrives y 
 
 The only point that feems to have admitted 
 of doubt, with regard to this fpecies of warranty, 
 is, Whether the condition of arrival applies to 
 xhtjhip only, or to both fhip and goods ? The 
 anfwer is, that the original intention of the 
 warranty was to provide againil the war-riJk, 
 and therefore it is enough if the Jbip arri'vesj 
 and it is of no'confequence, although the goods 
 or the velFel have fufTercd Jea-da?na^e. 
 
 ' 0^4 ^ SiMMOND
 
 494 Insurance ContPvAct, how dissolved, 
 
 SiMMOND againjl Boydell. 
 
 A policy was underwritten in thefe words, 
 " at and from the port or ports in Grenada to 
 *' London, on any Ihip or fliips that fliall fail on 
 " or between the ift of May, and the ill of Au- 
 " guft 1778, at 18 guineas per cent, to return 
 " L. 8 per cent, if Jhe fails from any of the Wefl 
 " India iflands^ with convoy for the voyage, and 
 " arrives.''* At the bottom there was a writ- 
 ten declaration, " that the policy was on fugars, 
 " (the Mufcovado valued at L. 10 per hhd.) for 
 " account of L. J^. being on the firll fugars 
 " which fhall be fhipped for that account." 
 
 The fhip Hankey failed with convoy within 
 the time limited, having on board 51 hogflieads 
 of Mufcovado fugar, belonging to L. ^ She 
 arrived fafe in the Downs, where the convoy 
 left her ; convoy never coming farther, and in- 
 deed feldom bevond Portfmouth. After fhe had 
 parted with the convoy, jfhe {truck on a bank 
 called the Panfand at Margate, and eleven of 
 the 5 1 hhds. of fugar were waflied overboard, 
 and the reft damaged. The vefTel was got off, 
 and arrived at her port. The fugars faved were 
 taken out at Margate, and, after undergoing a 
 fort of cure, were carried to London in other 
 velfels ; and the forty hogfneads being fold, pro- 
 duced L. 340, inftead of L. 800, which was their 
 valuation in the policy. 
 
 The
 
 Non-performance of Warranties. 495 
 
 The defendant, iniurer, had paid into court 
 the value of the fugars loft, and a return of L. 8 
 per cent, on L. 340. The plaintiffs, the ured, 
 inlifted, that they were entitled to a return of 
 L. 8 per cent, not only on the fugars faved, but 
 on the valued price of the 1 1 hogfheads of fugar 
 which were loft, and on the ditference between 
 what the remainin 4c hogflicads produced, and 
 their valued price. A verdidl having been found 
 at Guildhall for the plaintiffs, rule was obtained 
 to fhew caufe why there fliould not be a new 
 trial. 
 
 For the plaintiffs, it was iniifted, that the word 
 arrives, applied only to the arrival of the fliip. 
 That in^ policies of this fort, the intention is, 
 that the underwriters fliall take the war-rilk upon 
 themfelves ; but that, if the vefTel is protedled 
 by convoy from that rifk, and actually arrives, 
 they (hall then return as much of the premium 
 as was meant to cover the war-rilk. That it 
 never could be meant by the word arrives, that 
 all the goods fhould arrive in a found ft ate, 
 which, in fo long a voyage, was a thing impoffible. 
 The very ufe of the word in the ftngular number, 
 Ihewed the general underftanding that it was 
 meant to apply to the fliip. 
 
 On the other fide, it was contended, that the 
 words in the policy muft be applied to the fub- 
 ject-matter of the infurance, which, in this cafe, 
 was on goods, not on the ftiip ; and therefore the 
 
 condition
 
 496 Insurance Contract, how dissolved. 
 
 condition of arrival mull be applied to them. 
 But they had not all arrived at London ; nor any 
 part of them, in the veiTel in v^^hich they failed 
 from Grenada ; therefore the-fecond part of the 
 condition was not at all performed ; or, at leaft, 
 only in part. Farther, if the underwriter were 
 bound both to indemnify the aflured for the lofs 
 incurred by the diminution of his fugars below 
 the valued price, and likewife to make a return 
 of premium on that diminution, the aflured would 
 be a gainer by the damage which his goods had 
 fuftained. For, in the valuation of the cargo, 
 the premium of infurance was no doubt included. 
 The Court were unanimous, that the return 
 of premium v/as due, if the vejfel efcaped, inde- 
 pendent of any claim of indemnity which the af- 
 fured might have upon the underwriter for any 
 damage fuftained by the goods, — The rule dif- 
 charged. Douglases Reports yi'jtb November 1779. 
 
 6. Another mode of relieving the underwriter 
 from the war-riik, is by introducing a condition, 
 that the fubjed alTured Oiall be neutral property. 
 In order to implement this warranty, the ihip or 
 goods muft be neutral in the conception of that 
 nation from whom danger of feizure is appre- 
 hended ; and muft be fufficiently documented as 
 fuch. 
 
 The principal quefcion upon this fubjedl re- 
 lates to the evidence, which fnall be fufficient to 
 ihow, that the warranty has not been complied 
 
 with.
 
 Non-performance of Warranties. 497 
 
 with. If a veflel has been condemned in a fo- 
 reign court, what weight is due to their fentence 
 of condemnation, and whether may other evi- 
 dence be adduced to refute or explain it. 
 
 It has been held, that a fentence of condemna- 
 tion by a foreign court is conclulive, if fufficient- 
 ly explicit. But if it be ambiguous, extraneous 
 evidence may be admitted to explain the ground 
 upon which it proceeded. 
 
 Bernardi againjl Motteux. 
 
 By an arret of the French Court, (26th July 
 ly^S,) " All veflels taken, of whatever nation, 
 *' whether neutral or allied,' from which any pa- 
 " pers have been thrown into the fea, fupprefled, 
 ** or abftradled, fhall be declared good prize, to- 
 '♦ gether with their cargoes, upon the mere proof, 
 *' that fome papers have been thrown into the 
 *' fea, without any neceffity of examining what 
 '' thofe papers were, by whom thrown, and even 
 " though a fufficient quantity fhould remain on 
 *' board, to juftify, that the (hip and its cargo be- 
 " long to friends and allies." 
 
 The defendant infured the plaintiff on freight 
 and cargo of the fhip Joanna^ at and from Venice 
 to London, " warranted neutral fliip and pro- 
 " perty." It appeared, that a French frigate ha- 
 ving flopped her, while under Venetian colours, 
 had ordered the captain to bring aboard his mu- 
 ^er-roU, pafTport, and bills uf loading, which 
 
 the
 
 49^ Insurance Contract, how dissolved. 
 
 the captain had been unwilling to do; but ha- 
 ving been obliged to comply, he had, in coming 
 aboard the frigate, dropt into the fea the box 
 containing his mufler-roll, his patents, and pafl- 
 port, and only produced his bills of loading. 
 
 The fentence of the French Court mentions 
 thefe circumllances, and ftates. as the ground of 
 condemnation, " that the bills of loading con- 
 •* tained goods for the account of fundry perfons 
 " in Venice, corifigned to fundry merchants in 
 '* London, whither he was bound. That thefe 
 " goods going into an enemfs country, and the lofs 
 " of the papers which had fallen into the fea, had 
 *' raifed fufpicions ^"^ 
 
 In an adion on the policy, it was ftated for the 
 opinion of the Court, whether this fentence was 
 conclufive evidence againft the plaintiff, that the 
 veflel was not neutral. The defendant refufed 
 to allow the arret above mentioned, and the pro- 
 ces verbal on which the fentence was founded, 
 to be made part of the proceedings. But the ma- 
 jority of the Court thought, that the fentence of 
 condemnation was ambiguous, and therefore that 
 evidence might be adduced to fhew the real 
 ground on which it proceeded. Judgment for 
 the plaintiff. Bouglas's Reports, 2^th January 
 
 1781. 
 
 Barzillay v. Lewis. 
 
 By certain French ordinances, it is enadted, 
 that if more than one-third of a fhip's crew are 
 
 enemies
 
 Non-performance of Warranties. 499 
 
 enemies to the King of France^ the (hip fliall be 
 confifcated ; that the property of a fhip fliall 
 not be held as transferred from an enemy to an 
 ally, until (he has been within a port of the lat- 
 ter ; and by treaty, it is fettled, that a paflport 
 Ihall be held to be fraudulent, unlefs the Ihip was 
 in the port from which it has been procured. 
 
 A French fhip, Vaimable Agathie, was taken 
 by an Englijh veflel, carried into Liverpool^ and 
 condemned as prize. She there got the name of 
 the Three Graces. She was purchafed by a Dutch 
 Company, and failed with a cargo for Amjlerdam. 
 The crew confifted of four Danes ^ one Dutchman^ 
 two Swedes^ one Portuguefe^ one Hamburger^ one 
 Norwegian^ one IriJJjman ; the captain, a Dane.— 
 She was infured by a Dutch name, ** warranted 
 ** Dutch.'"* In the courfe of her voyage, fhe was 
 taken by a French Jhip, carried into St Maloes, 
 and there releafed, as being Dutch ; but this fen- 
 tence was reverfed on appeal, by the Parliament 
 of Paris. 
 
 On motion by the plaintiff, to fet afide a non- 
 fuit, Lord Mansfield faid, — The fentencc of 
 the French Admiralty, whatever it means, is de- 
 cilive. It feems to be upon the ground, that the 
 velTel is not Dutch. The warranty is, " that the 
 " fhip is Dutch,'' to the elfect of being proteded 
 againfl the French. That flie Ihall be neutral with 
 refped to France, 
 
 It
 
 500 Insurance Contract, how dissolved. 
 
 It is of no confequence, whether ihe was con- 
 demned upon the principles of the law of nations, 
 or upon the municipal regulations, which parti- 
 cular ftates may have introduced with regard to 
 their marine. The Dutch owners were bound 
 to know what entitled their fliip to neutrality. 
 She appears to the underwriters to be Dutch ^ and 
 they infure her as fuch ; but when lifted in the 
 French courts, (he is found not to have the requi- 
 iites. She has no fuch pafs as is required by 
 Treaty. And what fhows the grounds of the 
 fentence, fhe is condemned by her Englifh name. 
 The fentence certainly proceeded on her not 
 being Dutch ; and this is conclulive. 
 
 WiLLES, J. — The palTport is collufive, and 
 there is no ambiguity in the condemnation ; 
 therefore it ought not to be opened. 
 
 AsHURST, J. — If the condemnation were on a 
 ground collateral to the policy, the plaintiff might 
 go into evidence to fet it afide. But clear here it 
 was on her not being completely documented as 
 a Dutch Ihip. 
 
 BuLLER, J. — Under the warranty of a neutral 
 Ihip, the party warranting mull fee, that fhe is 
 completely documented, and comply in every 
 refpedt with the marine regulations. — Rule dif- 
 charged. Trin. 22. Geo. III. 
 
 In another cafe, Mayne v. Walter, (formerly 
 ftated,) theveflel, " warranted Por^z/^z^^," was 
 
 condemned,
 
 NON-FERFORMANCE OF WARRANTIES. 5OI 
 
 condemned, for having, contrary to a particular 
 regulation of France, an Englijh fupercargo on 
 board. As this was a ground of condemnation, 
 unconneded with the warranty,— in an adion 
 on the policy, judgment was given for the aflu- 
 red plaintiff. 
 
 Several other cafes might be ftated to the fame 
 purpofe ; but the doctrine appears too clear, to 
 require farther illuftration*. 
 
 7. There remains ftill another warranty of con- 
 iiderable im.portance ; where a velTel is warrant- 
 ted to fail on or before a particular day. It takes 
 place generally in thofe adventures, the fuccefs 
 of which depends upon catching the opportunity 
 of trade-winds, or avoiding the tempeftuous 
 weather incident to particular feafons of the 
 year, in the warm latitudes. 
 
 When a veffel is ** warranted to fail before a 
 " day," — flie is underftood to fulfil the war- 
 ranty, if, before that day, Ihe has made a bona 
 fide inception of the voyage. 
 
 Bond v. Nutt. 
 
 The fliip Capel, in the Well-India trade, was 
 infured " at and from Jamaica to London ; war- 
 *' ranted to have failed en or before the ifl of Au- 
 ^^ guft 1776, at fifteen guineas /><?r cent, to return 
 *' 'h^^ per cent, if departs with convoy, and eight 
 
 Rrr ''per 
 
 * There are two c'd{t$, ,Sa/ucci v. Wooiiinafs, Hil. 24. 
 Geo. III. and Palluccei v. Woodmafs, Hil. 25. Geo. III. upon 
 the fame point.
 
 502 Insurance Contract, how dissolved, 
 
 " per cent, if with convoy for the voyage, and 
 " arrives." 
 
 The ihip was completely laden, for her voy- 
 age to England, at St A?ine^s in Jamaica ; and 
 failed from St Atine^s bay on the 26th of July for 
 Bluejields^ in order to join the convoy there ; 
 BlueJieldSy the rendezvous of convoy, being out of 
 the direct courfe to England. She arrived off 
 Bhiejields on the 28th or 29th of July, where 
 fhe was immediately flopped by an embargo 
 laid on all velTels being in any part of Jamaica, 
 and was detained there till the 6th of Auguft, 
 when Ihe failed with the convoy for England, 
 but was feparated, and taken by an American 
 privateer : — Upon thefe fads the jury found a 
 verdidl for the defendant. 
 
 Upon motion for a new trial, it was argued, 
 in fupport of the verdidl ; — ittzo, That the fhip, 
 although (he departed from St Anne'^s before 
 the lit of Augult, did not depart /roTTz Jamaica 
 in terms of the warranty ; for Bluejields is in 
 Jamaica as well as St Anne^s : ido, If the de- 
 parture from St Anne^s was a fulfilment of the 
 w^arranty, then the going to Bluejields was a de- 
 viation. 
 
 It was argued, on the other hand, that the 
 departure from the port of difcharge, with every 
 thing ready for the voyage, was a complete de- 
 parture from Jamaica, and touching at Bluejields 
 for the fake of convoy, was no deviation, being 
 the moft prudent courfe of faiUng to England ; 
 
 andy
 
 Non-performance of Warranties. 503 
 
 and, therefore, being a variation from the dired 
 courfe for a juftifiable caufe. 
 
 Lord Mansfield vvifhed to hear the fecond 
 ground more fully pleaded ; after which, the 
 court, confidering the great importance of the 
 queftion, upon which no lefs than L. 100,000 
 depended, took farther time to advife. After- 
 wards his Lordihip delivered the opinion of the 
 Court ; — We are all fatisfied the truth of the cafe 
 is, that the voyage from Jamaica to England be- 
 gan from St Anne's. That when the fhip failed 
 from St Anne's, Ihe had no view or object what- 
 foever, but to make the bed of her way to 
 England; and fhe touched at Bluefulds only, 
 as being the fafeft and beft courfe (under the 
 then circumftances) of her navigation to En- 
 gland. The value of this queftion, admitted on 
 both fides, fhews, that every other fliip, under 
 the fame circumftances, looked upon the touch- 
 ing at Bluefields, where the convoy then lay 
 ready, to be the fafeft courfe of navigation from 
 Jamaica to England ; and that it would have 
 been unwife and imprudent for any fiiip not to 
 have touched there. The great diftinclion is 
 this : That ftie fliiled from St Anne's for England 
 by the way of Bluefields ; and that it was not a 
 voyage from St Anne's to Bluefields, with any 
 objecT; or view diftind from the voyage to En- 
 gland. If fhe had gone firft to Bluefields, for 
 any purpofe independent of her voyage to En- 
 gland, to have taken in water, or letters, or to 
 ^ have
 
 504 Insurance Contract, how dissolved, 
 
 have waited in hopes of convoy coming there, 
 none being ready ; that would have given it the 
 condition of one voyage from St Anne's to Blue- 
 fields, and another from Bluefields to England. 
 But here, under all the circuraftances, we think 
 flie had no other objedl than to come to En- 
 gland diredly by the fafeft courfe. Therefore 
 the rule for a new trial mull be made abfolute. 
 Cowper's P^eports, loth May 1777. B. R, 
 
 Thelluson againji Fergusson. 
 
 A French fhip, Uaimahle Gertrude, was infur- 
 cd *' at and from Guadaloupe to Elavre, war- 
 " ranted to fail on or before the 31/? of December.'''' 
 The fnip took in her complete lading and pro- 
 vilions for France \ and all her clearances and 
 papers, at a port called Foint a Pit re in Guada- 
 loupe, and failed on the 24th October for Baffe- 
 terre, where there is no port, but only an open 
 road. The town of Baffe-terre is the refidence 
 of the French Governor. The ihip arrived 
 there at night, when the captain went on fhore, 
 and next day waited on the Governor, who 
 would not permit him to depart ; and to pre- 
 vent it, took his fliip's papers from him. At this 
 place he was detained till the loth of January, 
 when he fet fail with a convoy j but was taken 
 by an Englifh velTel. 
 
 The captain fwore, that notice had been given 
 by the Governor, that a convoy was expected at 
 Bajfe-terre on the 25th of 06tober ; that he 
 
 vvTOUghi;
 
 Non-performance of Warranties. 505 
 
 wrought night and day to get ready before that 
 time ; and that when he failed on the 24th, he 
 was ftill in hopes of meeting with the convoy at 
 Baffe-terre, 
 
 The defendant produced a paper called le 
 role d* equipage^ which was one of the fhip's 
 clearances at Point a Pitre^ and contained thefe 
 words : " Permis au Sieur Jean JaquesLethuiUiei\ 
 " commandant le navire Laimahle Gertrude de 
 " Havre, de s*en fervir pour faire Jon retour au 
 " dit lieUy pajfant a la Bajfe-terre pour y prendre 
 " les ordres du Gowuernement, en obfervant les 
 " ordonnances et reglemeiis de la marine." 
 
 On another paper, called le conge, which was 
 read on the part of the plaintiff, there was writ- 
 ten at the bottom as follows : " Fi/ de relache a 
 *' la BaJfe-terre, Guadaloupe, pour y attendre un 
 " convoi pour France.''* 
 
 The captain fwore, that he undcrftood the 
 only reafons for the condition in the mufler-roll, 
 that he fhould go to Balfe-terre, were, that the 
 convoy was to be at that place, and that he 
 might take fuch difpatches as were ready for 
 Europe. He had not objected to it, becaufc, in 
 the regular courfe of his voyage to France from 
 Point a Pitre, he mull have gone that way clofe 
 under the guns of BaJJe-terre, in order to avoid 
 Montferrat^ there being no other road, except 
 they were to keep quite to the leeward, which 
 is not the cuftom. If he had arrived there in 
 the day-time, he would not have call anchor, 
 
 buT
 
 5o6 Insurance Contract, how dissolved. 
 
 but would have fent his boat for the difpatches ; 
 but having arrived at night, his {hip had been 
 detained, contrary to his intention and expec- 
 tation. 
 
 The defendant's counfel, to invalidate the 
 captain's teftimony, belides the role d*equipage 
 or mufler-roll, produced the captain's proteft on 
 his arrival at Dover, which contained thefe 
 words : " Whereupon he (the captain) waited 
 " on the proper officer at Point a Pitre, for his 
 " muller-roll, and was anfwered it could not be 
 " granted, but on condition that he Ihould fail 
 " firft to BalTe-terre, and there wait the directions 
 " of the Governor.^"* It appeared likewife from 
 the proteft, that the captain had thought the in- 
 furance forfeited by his ftay at Baffe-terre. 
 
 A verdid: having been found at Guildhall for 
 the plaintiff, it was argued in favour of a new 
 trial, principally on the following ground : 
 That the departure from Point a Pitre was not 
 to be conlidered as a bona fide and complete in- 
 ception of the voyage for Europe : For that it 
 was merely a conditional inception of the voyage, 
 and appeared from the mufter-roll and other 
 evidence, to have depended upon the orders 
 which the captain was to receive at Bajfe-terre. 
 That it differed therefore materially from the cafe 
 of Bond V. Nutt, in which the a6t of the captain 
 in going to Bluefieids was voluntary, and for 
 the benefit of the concerned *. 
 
 For 
 
 * There was another ground founded upon in this cafe, 
 in confequence of the following claufe of the captain's depo- 
 
 fitioH^
 
 Non-performance of Warranties. 507 
 
 For the plaintiff it was faid, that this cafe was 
 not fo ftrong as Bond v. Nutt^ becaufe Bluefields 
 was out of the ftraight couife of the voyage in 
 that cafe, whereas here Bajfe-terre was in the 
 direct way to France ; fo that the captain mull 
 have gone by that place at all events, and al- 
 though there had been no fuch words in the muf- 
 ter-roll, as thofe relied on by the defendant's 
 counfel. The only purpofes for which thofe 
 ^vords were inferted, were, that he might be fure 
 of convoy, which was expected to be at Baffe- 
 terrCy and to carry any government difpatches 
 
 that 
 
 fition. " At the time the fhip was firft purfued and taken, 
 " fhe was fleering her courfe towards Breft. Her courfe was 
 " not altered upon the appearance of the veflel by which 
 " ftie was taken. Her courfe was at all times, when the 
 *' weather would permit, directed to Breft j for which port 
 *' he was inftrufted to fail, although the dellination was for 
 " Havre de Grace by the fhip's papers. She was not before 
 " nor at the time of the capture, failing beyond or wide of 
 " Havre de Grace." 
 
 From this it was maintained, that the veflel had never fail- 
 ed on the voyage infured. But, on the other hand, as the 
 captain had farther declared, " that he had failed towards 
 " Breft, as the fafeft way in time of war, of getting to 
 " Havre, which ftill continued to be the place of the ftiip's 
 " deftination." And as, fuppofing that the voyage towards 
 Breft would have been a deviation, it had been merely //i- 
 tended and not executed, the veffel having been taken before 
 
 the dividing point From thefe confiderations this defence 
 
 feems to have met with litde attention, and was dropped 
 before the final conclufion of the proceedings, iu the dilicr- 
 ent cafes depending on this policy.
 
 5o8 Insurance Contract, how dissolved. 
 
 that might be ready ; the voyage to Europe was 
 not lefs commenced on that account. 
 
 Lord Mansfield faid, that the delay at BaJJe- 
 terre was to be confidered as an accident, which 
 did not vary the bona fide commencement of 
 the voyage. That in confequence of the expec- 
 tation of convoy, he would have gone to Bqffe- 
 terre at any rate, independent of the claufe in 
 the mufter-roll. The reft of the Court were of 
 the fame opinion, that there was a bona fide in- 
 ception of the voyage from Point a Pitre, — The 
 rule difcharged. — See Douglases Reports, lift 
 April 1780, where it appears that a fnnilar de- 
 termination was given in adlions againft twenty 
 other underwriters upon the fame policy. Theh 
 lufon 'V, Staples, S^c. 
 
 Earle againft Harris. 
 
 Adion on a policy of infurance. A verdid 
 having been found at Guildhall for the plaintiff, 
 on motion for a new trial. Lord Mansfield re- 
 ported the fadls. — The policy was on the Leg- 
 horn galley, ** at and from Leghorn to Jamaica, 
 " with liberty to call at the Windward Illands, 
 '' and from thence to Liverpool ; warranted to 
 '•^ ftiil from Jamaica, on or before the firft of Au- 
 ^* guft next.^"* The fhip had taken in her whole 
 lading and papers, and fet fail from the port of 
 Savannah la Mar, on the firft of Auguft, and 
 went to Bluefields, which is at the diftance of 
 about five miles, and is the general place of ren- 
 dezvous
 
 N0N-PERF0RI\rANCE OF WARRANTIES. 5C9 
 
 dezvous for convoy. On the 25th of July, an 
 embargo had been laid on all the Ihips in the 
 ifland by the Governor, and inferted in the pu- 
 blic newfpapers of that date. On the firll of 
 Auguft, as foon as the Ihip had crolTed the bar, 
 going out of the harbour of Savannah la Mar^ 
 the captain returned in a boat, and there made 
 a proteil againft lofs or damage to be fuftained 
 from the embargo ; which proteft he could not 
 have made at Bluefields. At tliat place, the fliip 
 was detained till the 9th of Auguft, when con- 
 voy arriving, the embargo was taken off, and flie 
 failed for England with the convoy ; but was 
 afterwards feparated from it, and taken by an 
 American privateer. 
 
 The captain was examined at the trial, and 
 admitted, that he had heard of the embargo ; 
 but faid he thought it was only meant to pre- 
 vent Ihips from departing without the protedlion 
 of convoy ; that he expelled to meet with con- 
 voy at Bluefields on the firft of Auguft, and that 
 the embargo would immediately ceafe, and leave 
 him to purfue his voyage the fame day without 
 interruption. 
 
 The point upon which the cafe feemed to turn, 
 was, whether this was to be confidered as a bona 
 fide inception of the voyage, fo as to bring it 
 under the cafe of Bond v. Nutt; or whether the 
 failing from Savannah la Mar, on the firft of 
 Auguft, was merely colourable, and intended to 
 anfwer the letter of the infurance. 
 
 S f f I-w^
 
 5IO Insurance Contract, how dissolved. 
 
 Lord Mansfield, and a majority of the Court, 
 thought that credit was due to the captain's de- 
 claration ; and that there was no reafon for fet- 
 ting alide the verdid:, as contrary to evidence. 
 The rule difcharged. — Douglas'' Reports, i\Jl A- 
 pril i']%o. 
 
 8. It has been repeatedly obferved, that a con- 
 trad: of infurance partakes of the nature of a 
 wager. The underwriter becomes liable, in the 
 event of a future contingency : He undertakes 
 a ri/lz. In judging of the value which each par- 
 ty fets upon his bargain, it is not enough to exa- 
 mine what is the amount of the rilk in the ge- 
 neral opinion of mankind, but what it is in the 
 ellimation of the individual wagerer. Infurance, 
 therefore, does not admit of equivalents. The 
 aflured is not entitled to fubflitute one entire ad- 
 venture, though as little or lefs hazardous, in the 
 place of another ; nor can he depart from any 
 article, however trivial in the general opinion, 
 which has been held up to the infurer ; becaufe 
 he knows not what influence that circumllance 
 may have had upon the infurer*s conception of 
 the complete rillv. The fame polition was for- 
 merly fhown to be flrongly enforced by views of 
 expediency. 
 
 The Englifh lawyers diftinguifh between a 
 hypothetical contra<5l, and a conditiofial one. 
 There is a condition underftood in both ; but in 
 the former cafe, the condition is faid to he prece- 
 dent, in the other it is faid to hejt/hjequent. In 
 
 what
 
 Non-performance of Warranties. 511 
 
 what is called a hypothetical contract, the exig- 
 ence of the condition is underftood to be ablb- 
 lutely neceffary, in order to create an obligation 
 upon the promifer. As, for example, when I 
 promife to pay a Aim of money, upon your per- 
 formance of a certain deed. A conditional con- 
 tracl is where a promife is underftood to be 
 made by one party, upon condition that fome- 
 thing fliall either be aclually performed by the 
 other, or at leaft that he ihall have done every 
 thing in his power to make out the perform- 
 ance. 
 
 The obligation of the infurer is, according to 
 this diftinction, hypothetical^ and the condition 
 is precedent. This is juftly inferred from the 
 nature of the agreement, and fituation of par- 
 ties. From what has been faid above, the alTu^ 
 red muft ftriclly execute what he has underta- 
 ken •, and will not be permitted to difcharge 
 himfelf, by what may be confidcred as equipol- 
 ieijt adls. 
 
 From this obfervation, it follows, that when a 
 warranty has been undertaken by the allured, it is 
 of no confequence, whether the failure Ihall arifc 
 from the fault of the alTurcd, or from unfore- 
 feen and unavoidable accidents. The infurer 
 meant to fubjed himfelf to a certain rifk, from 
 a view of the complex circumftances laid before 
 him ; and if any variation is made in thofe cir- 
 cumftances, the rilk is not the fume^ and the 
 
 event
 
 512 Insurance Contract, how dissolved, 
 
 event upon which he meant to bind himfelf, has 
 not taken place. 
 
 This point, however, has been the fubjedl of 
 doubt, and formerly of fome controverfy ; par- 
 ticularly in the cafe where a veiTel has been in- 
 fiired, warranted with convoy. By a warranty 
 of convoy, it feems to have been fuppofed, that 
 the aflured undertakes two things ; that there 
 Ihall be an armed force, ready, in proper time 
 and place, to jjndertake the protedion of the 
 velTel infured ; and that the veflel infured fhall 
 be ready, in every refpedt, to take advantage of 
 that protection which her convoy may be capa- 
 ble of affording her. If there be a failure in ei- 
 ther of thofe circumftances, the afTured undoubt- 
 edly is guilty of a breach of contrad, and there 
 appears no hardihip in confidering the policy as 
 void. 
 
 But if the condition has failed without any 
 blame imputable to the alTured : if, for example, 
 he has been prevented by a ftorm or calm at 
 , fea, from aclually joining, or, when joined, from 
 receiving failing orders ; — does not the failure 
 arife from thofe accidents, for all the confequen- 
 ces of which the infurer is liable ? Does there 
 not appear a hardfhip in annulling the alTured's 
 contraft, and depriving him of his indemnity, in 
 confequence of an event which it was not in his 
 power to control ? And fhall not equity inter- 
 pofe, and relieve him, by a liberal interpretation 
 of the condition? 
 
 ' The
 
 Non-performance of Warranties. 513 
 
 The following decifion feems to have proceed- 
 ed upon fuch a view of the fubjedl. 
 
 Victorin v. Cleeve. 
 
 The plaintiff infured on goods by the John 
 and Jean, '* from Gottenburgh to London, 
 " warranted to fail with convoy from Fleckery.^^ 
 In July 1774, the fliip failed from Gottenburgh 
 to Fleckery, and there waited for convoy two 
 months. On the 2ift September, at nine in the 
 morning, three men of war, who had an hun- 
 dred merchant-fhips in convoy, flood off Fleck- 
 ery, and made a fignal for the (hips there to come 
 out. There were fourteen fhips, and the Jobi and 
 Jean got out by twelve o'clock, and one of the 
 firfl, the convoy having failed gently on, and be- 
 ing then two leagues a-head ; and Ihe came up 
 with the fleet by fix o'clock in the afternoon ; 
 but as it blew a hard gale, flie could not get 
 to either of the men of war for failing orders. 
 It was flormy all night, and at day-break the 
 fhip in queftion was in the midlt of the fleet ; 
 but the weather was fo bad, that no boat could 
 be fent for failing orders. A French privateer had 
 failed amongfl them all night, and on the 2 2d, 
 it being foggy, attacked the John and Jean about 
 two, who kept a running fight till dark, which was 
 renewed the next morning, when flie was taken. 
 
 For the defendant it was infilled, that this fliip 
 was never under convoy ; nor are veifels ever 
 confidered fo, till they have received failing or- 
 ders ;
 
 514 Insurance Contract, how dissolved. 
 
 ders ; and if the weather would not permit the 
 captain to get them, he Ihould have gone back. 
 But the Chief Juftice and jury were of opinion, 
 that as the captain had done every thing in his 
 power, it was a departing with convoy, and 
 thefe agreements are never confined to precife 
 words ; as in the cafe of departing with convoy 
 from London, when .the place of rendezvous is 
 Spithead, a lofs in the going thither, is within 
 the policy. So the plaintiff recovered. Strange, 
 1250, 19. Geo» IL 
 
 In this cafe, the veiTel, it fiiould feem, had 
 formed a fufficient jun5tion, according to the 
 ufage of the trade ; but Ihe had not got failing 
 orders ; this happened without the fault of the 
 affured, and the warranty was found to be per- 
 formed. Ought not the fame rule to hold, if, 
 by the ftorm, the veiTel had been prevented from 
 ever making a jundion ? 
 
 From a fuller and more juft view, however, 
 of the principles of infurance, the contrary doc- 
 trine is now completely eftabliflied. It was for- 
 merly illuftrated by adjudged cafes in the in- 
 ftance of an alteration or deviation by the mailer 
 or crew, or by the ihip-owners, which vacates 
 the policy, although without the fault, or even 
 the knowledge, of the alTured fnipper of goods. 
 
 In feveral warranties, exprefs or implied, the 
 point cannot admit of doubt. Thus, there is an 
 implied warranty in every infurance, that the fhip 
 
 IhaU
 
 Non-performance or Warranties. 515 
 
 fhall he fea-ii'orthy. Let us fuppofe, that everv 
 thing that could be expefled is done by the aflu- 
 red to put her in that fituation, but a latent de- 
 fed; has remained, which renders her, after all, 
 infufficient for the voyage. Although there be 
 no fault in the aflured, yet as the warranty has 
 not been complied with, the underwriter is free. 
 Mills V. Roebuck. 
 
 A veflel is infured *' from Jamaica to Lon- 
 " don, warranted to Jail before a particular day.** 
 In the courfe of her outward-bound voyage fhe 
 meets with ftorms and tempefls, which occafion 
 delay, and render it impoflible to obtemper the 
 condition. In fuch a cafe, the failure of the 
 warranty has never been difputed. 
 
 In the cafe of a warranty of convoy ^ the point 
 has likewife been exprefsly decided. 
 
 HUEBERT*:;. Picou. 
 
 Pi^ou infured Huhbert " on the fliip Arundel, 
 ** at and from Jamaica to London, warranted 
 " to fail with convoy.'''' 
 
 It appeared upon the trial, that Lord Rodney 
 had, upon 12th July (1782), left orders for Ad- 
 miral Graves to take ten iliips of war under his 
 command, and to convoy the Weft India fleet to 
 England. Of thefe ten fliips, the Glorieux, Capt. 
 Cadogan, was to be one. Orders were accor- 
 dingly given (July 22.) to Captain Cadogan, to 
 put to fea immediately, as the fleet would be 
 kept at BluefieldSj (the general rendezvous), till 
 his arrival with the Glorieux. Admiral Graves, 
 
 however.
 
 t^i6 Insurance Contract, how dissolveDc 
 
 however, thought it advifable to fail from Blue- 
 Jields on the 26th July, four days before the 
 ufual term for the departure of the fleet, with 
 only five fail of the line, and fifty-one mer- 
 chant-men, and (it appeared upon this trial) 
 leaving no orders for the reft of the fliips. 
 
 The Arundel failed on 25th July, from Morant 
 Bay, her port of loading, to Kingfton, where 
 fhe met with the Giorieux, and alked for Jailing 
 orders ; but was told, that they were not necef- 
 fary, as Admiral Graves would not be gone from 
 Bluejields. She arrived at Bluejields on the 28th, 
 in company with the Glorieux, and Jafon man 
 of war. Captain Man of the Arundel again ap- 
 plied for failing orders ; Captain Cadogan faid 
 he had none himfelf; but if they did not over- 
 take the fleet, he would make out failing orders. 
 The Glorieux and Arundel failed together in 
 queft of the fleet, the former aEling as convoy ; 
 and, on the 5 th Auguft, flie brought the yifrMw^^/ 
 into the middle of the fleet, off Cape Antonio in 
 Cuba, where flie received failing orders from 
 Admiral Graves. She was afterwards feparated, 
 and taken. 
 
 The jury found a verdidl for the defendant re- 
 ludantly. On motion for a new trial, — 
 
 Lord Mansfield. — Both parties are here free 
 from blame. But there is a difference between 
 a hypothetical and a conditional contract ; the lat- 
 ter admits of equity, and where it cannot be per- 
 formed literally, may be performed as nearly as 
 
 poflfible,
 
 Non-performance of Warranties. 517 
 
 poffible. But in a hypothetical contrad like 
 this, if the event does not happen, there is no 
 agreement. 
 
 The warranty of convoy does not begin ex- 
 cept from the place of rendezvous ; and the fliip 
 is proteded by the policy, in failing thither. 
 The rendezvous may be fixed or changed by 
 Government. Government likewife fixes the 
 convoy; a man cannot chufe his own convoy. 
 
 Here, Lord Rodney appoints certain fhips to 
 put themfelves under Admiral Graves' command, 
 and become part of the convoy. In order to 
 this they mufi hsLve failing orders , which are ma- 
 terial and ejfentialj as otherwife they cannot un- 
 derftand fignals. On 26th July, Admiral Graves 
 fails, without leaving orders for the fhips that 
 are left. He had not changed the rendezvous 
 from Bluejields to Cape Antonio. The Glorieiix, 
 therefore, when fhe failed from Bluejields^ was 
 not one of the convoy. The cafe is a hard one ; 
 but it does not admit of equity. 
 
 WiLLES, T, — There is no fraud nor laches in 
 this cafe ; and therefore it is a hard one. No 
 fpecific time for failing is here mentioned, which 
 fhould lead to fuppofe, that any particular con- 
 voy was in contemplation. On a liberal con- 
 ftruclion, it was failing with convoy ; for the 
 Glorieux adted as convoy, and the warranty has 
 been fubftantially complied with. The Arun- 
 del did all in her power to fail with convoy. 
 Suppofe, at Bluejields J the Admiral had been out 
 
 Ttt * of
 
 5i8 Insurance Contract, how dissolved. 
 
 of humour, andrefufed failing orders, would that 
 have voided the policy ? There is only one cafe, 
 (2. Strange f 1250,) which fays, th.2i.t failing orders 
 are necelTary \ and, in that cafe, it was found 
 fufficient, that the party had done all in his power 
 to procure them=— The verdid is wrong. 
 
 BuLLER, J. — It is not necelTary to fay, whe- 
 ther failing orders are necelTary or not *, — but it 
 is better there fhould be failing orders. 
 
 The condition of convoy mull be literally 
 complied with, otherwife there is no contradl, 
 though the aflured has done his bell. The Glo- 
 rieux was no convoy ; Ihe did not fail under, and 
 had no orders from Admiral Graves. It is im- 
 material what is the force of the convoy ; but 
 Government mull appoint it. The Arundel did 
 not fail with convoy appointed by Government. — • 
 Rule difcharged, i^th May 1783 *. 
 
 9. From the foregoing dodrine, it mull alfo 
 be inferred, that it is of no confequence, whether 
 
 the 
 
 * HUBBERT V, BaINBRIDGE. 
 
 A very great property depending on this infurance, the 
 aflured tried the queftion againft another underwriter j and 
 produced new evidence. 
 
 BoLLER, J. — What pafTed on a former occafion is not to 
 control the verdift of the jury. It now appear?, that Ad- 
 miral Graves had exprefled his expeftation, that the veflels 
 left behind v/ould join him off Cape Antonio. And there is 
 reafon to believe, that this was known to Captain Cadogan 
 of the Glorieux. The Gloritux, therefore, was under orders, 
 and one of the convoy. — Verdiftfor the plaintiff, in which the 
 underwriters acquiefced, 1783. MSo
 
 Non-performance of Warranties. 519 
 
 the failure of the affured to perform a warranty, 
 has occafioned, in fad, any particular lofs or 
 inconvenience to the infurer. The queftion is 
 not, whether the infurer has adually fuffered 
 any thing from the non-exiftence of any parti- 
 cular condition ; but whether the circumflances 
 of the bargain have taken place, in fuch a man- 
 ner, as to render the hazard ftridly the fame, 
 for which he meant to be refponfible. 
 
 De Hahn v. Hartley. 
 
 The plaintiff, an underwriter, having paid a 
 lofs on the fliip Juno^ raifed an adion for repe- 
 tition. The jury returned a fpccial verdid, of 
 which the material points were as follows : 
 
 On 14th June 1779, De Hahn infured Hartley , 
 on the fliip Juno, ** at and from Africa^ to her 
 " port or ports of difcharge in the Britifi Wejl 
 " Indies.'*^ On the margin of the policy were 
 written thefe words, — " Sailed from Liverpool 
 '* with 14 fix- pounders, fwivels, fmall arms, and 
 " 50 handsy or upwards; copperiheathed." 
 
 The Jufio had failed from Liverpool on the 
 13th Odober 1778 ; but, inftead of 50, flie had 
 then only 46 hands on board ; and fhe arrived 
 at Beaumaris in the I/Ie of Anglefea, in fix hours 
 after leaving Liverpool. At Beaumaris^ fhe took 
 in fix hands more, and continued to have 52 
 hands, during the reft of the voyage. During 
 her paflage from Liverpool to Beaumaris^ it is 
 fpecified in the verdid, that (he was equally fafc, 
 
 as
 
 520 Insurance Contract, how dissolved, 
 
 as if fhe had had 50 hands on board. — She was 
 taken by enemies, in the courfe of the infured 
 voyage, on the 14th March 1779. 
 
 The counfel for the plaintiff was flopt by the 
 Court. 
 
 For the defendant, it was argued, that the mar- 
 ginal note in this cafe was not to be conlidered 
 as a warranty, like that in Bean v. Stupart, and 
 other cafes on the point. For in thofe, the note 
 had always been a warranty of a fad with rela- 
 tion to the voyage ^^infured. But in this, it has 
 no relation to the voyage ; it relates merely to 
 the force of the Ihip at Liverpool, long before 
 the rifk commenced. The policy is " at and 
 ** from Africa to the Wejl Indies ;'* but the mar- 
 ginal note, fo far as it has not been adhered to, 
 applies to the circumftances of the veffel, at a 
 period antecedent, when Ihe *' failed from Li- 
 ** verpool" — So far as relates to the copperJheatJh- 
 ing, which may apply to the adventure infured, 
 the marginal note may be held to be a warranty ; 
 but as to the number of hands, when flie failed 
 from Liverpool, it can be nothing more than a 
 reprefentation. — And has been fubftantially com- 
 plied with. 
 
 The Court held, that this claufe being a war- 
 ranty, muft be literally complied with. The dif- 
 tindtion attempted between the different parts 
 of the marginal note, is without foundation. 
 Judgment for the plaintiff. — Termly Reports, 
 Tri?i, 1786. ^ 
 
 In
 
 Non-performance of Warranties. 521 
 
 In the fame manner, where a fhip is infured 
 under a warranty, which is calculated to fecure 
 her againft the peril of capture ; if the warran- 
 ty is not performed, and a lofs is incurred, the 
 underwriter is not refponfible, although the lofs 
 fhould have arifen from a caufe totally uncon- 
 nected with that hazard, againft which it was 
 the view of the warranty to provide. 
 
 WOOLMER V. MuILMAN. 
 
 This was an aclion for recovery of a total lofs 
 on a policy of infurance made ** on goods and 
 " merchandifes on board the fliip Bona Fortuna, 
 " at and from North Bergen y until her arrival at 
 " London, warranted neutral Jh'ip and property. ^"^ 
 She was loft in ajlorm. 
 
 It was exprefsly ftated, that the velTel, at and 
 before the time fhe was loft, was not neutral 
 property. Lord Mansfield faid it was too plain 
 to argue. Judgment for the defendant, 3. Burr. 
 I'jth June 1763. 
 
 A variety of cafes, in relation to a condition 
 of convoy, occur in illuftration of the fame prin- 
 ciple. If a veflel is warranted with convoy, and 
 does not adually join convoy, the contrad is 
 void, and the infiirer is liable for no lofs, from 
 whatever caufe it may be incurred. Neither is 
 it of any moment, that ftie has overtaken the 
 convoy before a lofs has happened •, for the agree- 
 ment being rendered void, canuDt revive by any 
 fubfequcnt change of circumftuaccs. 
 
 DUNMORE
 
 522 Insurance Contract, how dissolved. 
 
 DuNMORE and Co. again/l Allan, Campbell, 
 and others. 
 
 There were two policies of infurance upon fu- 
 gar, the property of Robert Dmimore and Company^ 
 on board the fhip Commerce, deftined for Clyde 
 from Jamaica. In the one policy, which was 
 fubfcribed by Allan, and others, at Glafgow, the 
 rifk was defcribed thus : — " Beginning the ad- 
 " venture upon the faid produce, at and from the 
 " loading thereof, at the loading ports in Ja^ 
 " maica, and to continue and endure until faid 
 *' Commerce, with faid produce, fhall {with li~ 
 ** berty to join convoy at the rendezvous') arrive at 
 *' Greenock or Port-GIaJgow, or at their port of 
 *' difcharge in Great Britain, and until faid pro- 
 ** duce be there fafely landed." The claufe 
 fpecifying the premium, with the condition of 
 infurance, runs thus : ** After the rate of 15 
 
 guineas for each L. 100 Sterling, warranted 
 
 with convoy, with L. 5 per cent, additional, if 
 " it does not fail on or before the ill Auguft 
 ** current." 
 
 The other policy, fubfcribed at Greenock, by 
 Campbell, and others, was in thefe words : — ** Be- 
 *' ginning the faid adventure upon the goods and 
 " merchandife, at and from the fhipping there- 
 *' of on board faid Commerce, at her port or ports 
 " of loading in Jamaica, and continuing until 
 " faid Commerce fhall arrive at her port of dif- 
 " charge in Clyde, and until faid goods and mer- 
 •* chandife are there fafely landed : The faid 
 
 " Comm,erce 
 
 n 
 ii
 
 Non-performance of Warranties. 523 
 
 " Commerce to fail with convoy for Britain^ on or 
 ** before the firft inftaiit ; or, if after that date, 
 " to pay five guineas per L. 100 additional pre- 
 *^ mium ; the faid Commerce having liberty to 
 *'' join convoy at the rendezvous.^* 
 
 Admiral Graves, with the convoy appointed 
 for the Jamaica trade, failed from Bluejields, 
 upon the 25th of July 1782, being fix days foon- 
 er than the ufual departure of convoy. 
 
 On the 29th of July, the Commerce failed from 
 Montego Bay, on the oppofite fide of the ifland ; 
 and having ground to believe, that the convoy 
 were already failed, Ihe proceeded after them, 
 and joined them on the 20th of Augufl, when 
 flie received her failing orders. — After failing in 
 company with them for fome time, (he was fepa- 
 rated in a hurricane ; again joined the fleet, was 
 again feparated, and taken by the Alliance, an 
 American frigate. 
 
 The caufe having come, (by fufpenfion,) be- 
 fore the Court of Seflion, the principal grounds 
 maintained by the aflured, feemed to be thefe :— 
 That in pradice it was cujlomary for veflTels fta- 
 tioned upon the north fide of Jamaica, in (lead 
 of going round to Bluefelds, to wait for convoy 
 at Negril Point, or fomewhere off the weft end 
 of the ifland ; therefore it was not neceflfary to 
 join at Bluejields. That, from feveral cafes, par- 
 ticularly Vi£lorin v. Cleeve, Strange, 1 250, it ap- 
 peared fuflScient, if a claufe of convoy was adhe- 
 red to fubftantially.— And a diftindion was at- 
 tempted
 
 524 Insurance Contract, how dissolved. 
 
 tempted between the expreffions, warranted with 
 convoy^ and warranted to depart with convoy. 
 The underwriters produced a certificate, that, 
 by the Glajgow pradice, thefe expreffions are 
 held to be fynonymous. And they quoted a va- 
 riety of recent cafes, to fhow the literal adhe- 
 rence required by the Engli/b Courts, and by 
 mercantile pradlice, to a claufe of convoy. 
 
 Lord Braxfield Ordinary, decided in favour 
 of the underwriters, by " fufpending the letters 
 ^^ Jimpliciter." 
 
 Upon a reclaiming petition and anfwers, it 
 was obferved upon the Bench. — The velTel infur- 
 ed is proteded by the policy, while failing to 
 the place of rendezvous. If fhe does not take 
 advantage of this power, fo as adually to join 
 convoy y fhe has herfelf to blame. The condition 
 of the contrad is not implemented ; the policy 
 is void ab initio, and cannot revive in confe- 
 quence of any fubfequent jundion. A velTel is 
 no more at liberty to fet fail after her convoy, 
 than Ihe is before it. Where would a latitude 
 in this refped end ? — The Court unanimoufly 
 adhered. 1786. — Fac. Coll. 
 
 The fame point was formerly illuftrated by 
 a variety of examples in cafes of deviation. 
 . 1 o. It is not inconfiftent with what has now 
 been obferved, that when the terms of a war-, 
 ranty have been ftridly complied with by the 
 aflured, and the adventure has been commenced 
 upon thofe terms, the infurer is not liberated 
 
 from
 
 Non-performance of Warranties. 525 
 
 from his obligation from any change of circum- 
 ftances, occafioned by unavoidable accident, 
 in the courfe of the voyage. Such changes 
 conllitute a part of that rifle which the infurer 
 has undertaken, and for which the premium is 
 given. 
 
 Thus, where a vefTel is warranted neutral ; flie 
 is neutral when the rifle commences, but fhc be- 
 comes otherwife in the courfe of the voyage ; 
 the warranty is held to be fulfilled ; for this is an 
 accident in the courfe of the adventure infured. 
 
 Eden fl^a/w/? Parkinson. 
 
 The plaintiff infured the fliip the Tonge Her- 
 man Hiddinga and her cargo, at and from L'Ori- 
 ent to Rotterdam, warranted a neutral ihip and 
 neutral property. The Ihip failed from L'Ori- 
 ent on the voyage infured on the nth Decem- 
 ber 1780, having the infured cargo on board; 
 and both the fhip and cargo were at that time 
 neutral property, and continued fo until the 
 20th of December 1780, when hoftilities com- 
 menced between the Englifli and Dutch. The 
 vefTel was taken on the 25th of December, and 
 condemned as lawful prize. 
 
 Thefe were the principal fa<5ls of a cafe fub- 
 mitted by a jury at Guildhall to the opinion of 
 the Court. It was contended for the plaintiffs, 
 that the warranty was complied with by the 
 neutrality of the fhip and cargo at the time 
 when the voyage commenced. For the dcfcnd- 
 
 U u u ant.
 
 526 Insurance Contract, how dissolved. 
 
 ant, that this warranty was intended to be co- 
 extenfive with the voyage ^ and that it was the 
 fame with an infurance againft war-rilk. 
 
 Lord Mansfield faid, that the rifk of future 
 war is taken by the underwriter in every policy ; 
 like every other rifk that arifes in the courfe of 
 the voyage. There is an implied warranty in 
 every infurance, that the velTel is good and fuf- 
 ficient for the voyage ; but this only relates to 
 the time of her failing. If fhe becomes infuffi- 
 cient during the voyage, it is at the rifk of the 
 underwriter. In the fame manner, if a fhip is 
 warranted neutral, it means when the adven- 
 ture commences ; if fhe becomes liable to cap- 
 ture in the courfe of the voyage, it is one of thofe 
 accidents for which the underwriter is anfwer- 
 able. The pojlea to be delivered to the plain- 
 tiff. Douglas'' s Reports, i6tb June 178 1. 
 
 In the fame manner, in cafes of convoy, it is 
 enough if the condition be once fulfilled, by the 
 velTel infured having made an adtual jundlion, ha- 
 ving got her failing orders, and making an incep- 
 tion of the voyage with her convoy. Any fepara- 
 tion that may afterwards happen is an accident 
 in the courfe of the adventure infured. It is 
 like a deviation from necejjity, which does not va- 
 cate the agreement. 
 
 Jeffery v. Legandra, 
 
 A vefTel was infured " from London to Cadiz, 
 " warranted to depart with convoy." In an 
 
 adion
 
 Non-performance of Warranties. 527 
 
 a(5lion on the policy, the jury found that the 
 ftiip departed from the port of London, in com- 
 pany with the convoy ; and that they failed to- 
 gether as far as the IJle of IVight^ where they 
 were feparated by flrefs of weather. That the 
 convoy put into Torhay^ and the infured fhip 
 into Fowey in Cornwall. That three days after- 
 wards, the wind fetting right to bring the con- 
 voy down the Channel, the fhip failed out of 
 Fowey to meet the convoy, but it did not come ; 
 and the infured fliip was driven by another 
 ftorm on the coall of France, and captured. 
 
 It was held by the whole Court, that the 
 words *' warranted to depart with convoy," 
 mean only that the veflel infured fliall depart 
 with convoy from his firft port, and Ihall not 
 leave it through any fault of the mafter. And 
 here the mafter had done all in his power to 
 continue in company with the convoy. — There- 
 fore judgment was given for the plaintiff. — 
 3. Lev. 320. — Carthew, 216. — 2. Salk. 443.— 
 I. Shower. 320. — 4. Mod. Rep. 58. 
 
 This principle is carried fo far, that if the 
 velTel infured has adually /oi«f^ convoy, and is 
 within the rendezvous at the time of failing ; if 
 fhe has her failing orders, is in every refped 
 ready to depart with the armed force, and 
 makes an effort for that purpofe ; — the attempt 
 to fail along with the convoy is confidered as a 
 fufficient inception of the voyage ^ and, although, 
 
 froa\
 
 528 Insurance Contract, how dissolved. 
 
 from the accidents of wind and tide, it fhould 
 prove ineffedual, is held a fulfihnent of the war- 
 ranty. 
 
 Fhynne and another againjl Webster. 
 
 Infurance was made " at and from London 
 ** to Quebec, warranted to fail with convoy for the 
 ** voyage.'''* The convoy lay at Portfniouth, and 
 the Ihip at Stokes* hay, which is within the 
 place of rendezvous \ and fhe had got failing 
 
 orders from Captain of the Afftflance. 
 
 On hearing the fignal for failing, Ihe weighed \ 
 but the wind failing, and the tide being fpent, 
 ilie could not get away along with the convoy. 
 She therefore followed next tide ; but never 
 came up with them, and was captured. 
 
 It was held that there was a fufficient per- 
 formance of the warranty ; as the Ihip "^2.^ joined 
 at the place of rendezvous, and her not failing 
 with the convoy arofe from an event not with- 
 in the power of man to control.- — At Guildhall,, 
 — after Hilary,— -1 7 8 3 . — MS. 
 
 CHAP. III. 
 
 Of the Premium^ and of the Return of Premium^ 
 when the Policy is vacated. 
 
 SO much with regard to the obligation of 
 ^^ the underwriter ; the duration and nature 
 of the riik for which he is liable : the extent to 
 which he is fubjed;ed when a lofs. has been in- 
 curred,
 
 .Non-performance of Warranties. 529 
 
 curred, and the circumftances which vacate the 
 policy, and deftroy his refponfibility : It re- 
 mains to confider the effed of the lame circum- 
 ftances upon the correfponding obligation of the 
 afTured. 
 
 I. That, whenever the underwriter has run 
 the complete hazard prefcribed by the contract, 
 he is entitled to the whole confideration ftipu- 
 lated, it is unneceflary to obferve. When the 
 infured voyage is completed, the underwriter 
 has, indifputably, earned his whole premium. 
 
 On the other hand, where the intended agree- 
 ment of infurance has not been carried into ef- 
 fed, and where confequently the iniurer has run 
 no rilk at all, he can have no title to the premi- 
 um for which he has given no equivalent. 
 
 But the infurer may, in certain cafes, be en- 
 titled to the whole confideration, although he 
 may not have run the whole, but only a part 
 of the correfponding hazard ; fuppofing that he 
 has been prevented by the fault of the aflured. 
 If two perfons enter into a bargain, and after it 
 is completed by all the legal folemnities, one of 
 them wifnes to recede, the other is not, without 
 his own confent, to be deprived of the advan- 
 tage arifing from the ftipulation ; and he who 
 is ready to perform, may exad performance, al- 
 though the other party fliould decline to receive 
 the equivalent confideration in terms of the bar- 
 gain. It is not prccifcly necelfary that the in- 
 furer fhould run the whole rifle, but only, after 
 
 the
 
 53© Insurance Contract, how dissolved. 
 
 the bargain is once complete, that the contrary 
 was not his fault; — " quod per eum nonjletit:* 
 
 From thefe principles, it follows, that where- 
 ever the contrad of infurance is null and void 
 ab initio, the alTured may deniand a return of pre- 
 mium. 
 
 Among thofe circumftances which deftroy 
 the contrad entirely, the intervention of fraud 
 or of error, produces one very important clafs. 
 
 Where a perfon has been led to execute an 
 infurance by dired fraud ; by a mutual error in 
 the material qualities of the fubjed ; or even in 
 confequence of any millake arifing from the fault 
 of the other party, which may effed his eftima- 
 tion of the rifk ; — ^the bargain is void from the 
 beginning ; and as no hazard is run on the one 
 fide, no premium can be due on the other. 
 
 It has, however, been the fubjed of fome doubt, 
 how far, in cafes of very palpable and grofs impo- 
 fition, the affured ought to be allowed to recover 
 the premium ; and whether he fhould not incur 
 a forfeiture of it as a penalty. The regulations of 
 Florence declare, in cafe of fraud 'with regard to 
 the ftowage of goods, that " the infurers lliall not 
 '* be under any obligation, andyetlhall be entit- 
 •* led to the premium." There is a fimilar regula- 
 tion at Antwerp, with refped to over-infurances. 
 And from the votes of the Commons in 1747, it 
 feems to have been intended in England, to im- 
 pofe the fame penalty upon every fpecies of fraud 
 
 in infurance. 
 
 It
 
 Non-performance of Warranties. 531 
 
 It mull be admitted, that the aflured cannot 
 be allowed to found upon his own fraud or omif- 
 lion, in order to annul the contrad, when the 
 event has turned out favourable to the infurer. 
 If the veflel arrives in fafety, the alTured can- 
 not maintain that circumftances had been con- 
 cealed by' him, that therefore the contrad is 
 null, and the premium to be returned. But, on 
 the other hand, where the aflured is in petitorio ; 
 — where the veflTel is loft, and, againft an adion 
 on the policy, the underwriter pleads the de- 
 fence, that the condud of the afllired was 
 fraudulent ; — this defence tends to cut down the 
 contrad entirely ; and for the infurer to retain 
 the premium, would be inconliftent with his own 
 argument, for the nullity of the agreement fup- 
 pofes that he neither can fuftain lofs, nor reap 
 any benefit from that deed. 
 
 The point has been fettled accordingly in 
 England, by repeated decilions. 
 
 In Wbittingham v. Thornboroughy where the 
 aflured was fraudulent, by procuring the name 
 of a leading underwriter as a decoy ^ " the policy 
 *' was decreed to be delivered up, and the pre- 
 ** mium to be repaid.'* In D^AcoJla v. Scanderct^ 
 where very material advices had been concealed, 
 ** L. Macclesfield decreed the policy to be 
 " delivered up, with cofts ; but the premium 
 " to be paid back, and allowed out of the 
 " cofts." 
 
 Wilson
 
 53^ Insurance Contract, how dissolved. 
 
 Wilson v. Ducket. 
 
 It! adlion on a policy of infurance on a Ihip, 
 with a claim for money had and received to the 
 plaintiff's ufe, it appeared that the firft under- 
 writer was only a decoy to draw in others ; it 
 being agreed that he fhould not himfelf be 
 bound by figning the policy. The jury found 
 a verdid for the alTured plaintiff for L. lo 
 premium, on the count for money had and 
 received to his ufe, though they found againfl 
 the policy as fraudulent. The trial was had 
 under a decree of the Court of Chancery, where 
 the infurer, being there complainant, had offer- 
 ed to pay back the premium. 
 
 With the concurrence of the Court and the 
 Counfel, it was agreed to bring this queflion be- 
 fore the Court, whether, upon a policy of in- 
 furance being found fraudulent, the premium 
 Ihould be retained by the infurer, or returned 
 to the affured. Befide the cafes IVhittingham 
 •V. Thornborough, and D'AcoJla v. Scanderet, the 
 plaintiff's counfel cited a cafe Rucker v. Hoi- 
 Unghury, in which the mafter of the rolls had 
 been of an opinion oppofite to the two former 
 decifions. 
 
 Lord Mansfield faid,— There mufl be fome 
 miflake as to this laft cafe ; for the pradice of 
 Chancery was certainly agreeable to the two for- 
 mer. Thefe were all in Chancery ; and it did 
 not appear there was any common law decifion 
 upon the point. — In this inftance, his Lordfhip 
 
 looked
 
 Non-performance of Warranties. 533 
 
 looked upon the offer made by the complain- 
 ant's bill in equity to be the lame thing, a> 
 if he had brought the money into Court. — 
 2^, Burr. 1361. 
 
 A deficiency with regard to the ftatutory 
 requilites, forms another general clafs of circum- 
 ftances, which render an infurance void from the 
 beginning, and which, therefore, ought naturally 
 to deftroy the underwriter's right to the premium. 
 When the policy has not been, in proper time, 
 drawn out on ftamped paper ; when it relates to 
 a wagering intereft, or to an illicit trade ;— the 
 infurer runs no hazard, and is not entitled to the 
 confideration. 
 
 By one of the adls, however, impofing a flamp- 
 duty on policies of infurance, the premium is, in 
 all cafes of contravention of the flatute, declared 
 to belong to the infurer. 5. Geo. III. c, 46. 
 
 In thofe policies which are null, as contrary 
 to flatute, it generally happens, that both parties 
 are accefTory to the evalion of the law ; for ex- 
 ample, in a wagering policy, or an infurance of 
 illicit trade. In fuch inflanccs, a court of jullicc 
 will reprobate any claim upon the contrad ; 
 but if it is once carried into execution, the judge 
 will refufe to interpofe, in order to rellore par- 
 ties againll the confequences of their own impro- 
 per condudl. 
 
 Thus Lowry procured infurance from Bour- 
 dieUf on a Ihip bound to the Eajl Indiif, with 
 
 X X X the
 
 534 Insurance Contract, how dissolved. 
 
 the view of fecuring himfelf in payment of a fum 
 due by the captain ; the allured had paid the 
 premium. After the velTel had arrived, he raifed 
 an adion to recover the premium, upon the 
 ground that this had been a wager-infurance. 
 The Court thought, that both parties were guilty 
 of a breach of the law, and it was proper to af- 
 lift neither. " In pari deliSlo, melior eji conditio 
 <* pq/Jidentis,'" Befides, if money has been given 
 for an illegal purpofe, it can only be recovered 
 while the contrad continues executory, but here 
 it has been executed. 
 
 But the mofl important examples of a null 
 infurance, are founded on the circumflance, that 
 this contrad is not complete, nor fully binding 
 on the alTured, until a performance has been 
 made by the underwriter ; that is, until the in- 
 fured voyage has commenced, and the under- 
 writer has begun to run the hazard. Until the 
 adventure has commenced, the affured has a 
 power to retradl. He exercifes this power when-- 
 ever he alters the voyage, or departs in any ar- 
 ticle from the exprefs or implied conditions of the 
 agreement. For example, where, before the 
 commencement of hazard, the plan of the voyage 
 is changed, and it is refolved to touch at ports 
 not fpeciiied, or to profecute a deftination differ- 
 ent from what was underitood. Where the vef- 
 fel is warranted neutral, with convoy, or to fail be- 
 fore a day, and Ihe fails in the performance of 
 thefe declared conditions. 
 
 . Wher^
 
 Non-performance of Warranties. 535 
 
 Where the aflured has thus receded from the 
 bargain, by altering the plan of the voyage before 
 the commencement of rilkj the contract is totally 
 annulled; the underwriter is not liable in indem- 
 nity, and the alTured recovers his premium. 
 
 On the other hand, wherever the bargain 
 is completed ;— where it relates to a legal inter- 
 eit ; where it is executed agreeably to ftatute ; 
 where it has not originated in mifrepreientation or 
 concealment; and where there has been a begin- 
 ning of performance : — In other words, where 
 the infured hazard has commenced, the premium 
 is gained by the underwriter. From the moment 
 that the rilk commences, the afliired has no 
 longer a power to recede. If he perliils in the 
 adventure toaconclufion,the underwriter is liable 
 for accident in the courfeof it, and earns his whole 
 premium, by being expofed to the whole hazard. 
 But if the aiTured, after the commencement of 
 rifk, chufes to depart from the voyage underta- 
 ken, ftill the infurer is not, without his own 
 confent, to be deprived of the benefit of his con- 
 trad ; and though, from the fault of the aflured, 
 he does not actually run the whole rilk, he is 
 entitled to retain the confidcration. In every 
 cafe of deviation, therefore, or departure from 
 the policy fubfequent to the commencement of 
 rilk, although the infurer's obligation is at an 
 end, yet the premium is gained. 
 
 The principle that a premium is due by the 
 aflured, in confidcration of a correlponding riik, 
 
 undertaken
 
 536 Insurance Contract, how dissolved. 
 
 undertaken by the infurer, has led to a quellion, 
 whether, in certain cafes, the hazard of a voyage 
 may not be conlidered as divifible ; fo that an 
 apportionment of premium may be made accord- 
 ing to the length that has actually been proceeded 
 in the ftipulated adventure. In general, it fhould 
 feem, that the adventure defcribed in any finglc 
 policy, is to be conlidered as one complex whole, 
 which the infurer undertakes in confideration of 
 the entire premium. It does not appear, that 
 parties have formed any idea of a fubdivilion of 
 the rilk, correfponding to a fubdivifion of the 
 premium. , Confequently, if the voyage be once 
 commenced, there can be no room for an appor- 
 tionment. 
 
 But there is one cafe, in which parties mull 
 have formed a conception of the adventure as 
 divifible ; wherever one part of it depends on a 
 condition, and another does not ; for, when this 
 occurs, the two parts of the infurance are in a 
 very different fituation. The exiftence of that 
 part which is conditional, is perfedly uncertain. 
 
 For example, infurance is made ** from London 
 " to Jamaica, and from Jamaica to London, war- 
 " ranted with convoy in the homeward voyage." 
 Parties mull be prefumed to have confidered 
 thefe two infurances, out and home, as two fepa- 
 rate rilks ; for the condition may fail, and confe- 
 quently, the infurance home be null. And if they 
 were to be viewed as one rifle, this abfurdity 
 
 would
 
 Non-performance of Warranties. 537 
 
 would follow, that the infurer could not be fub- 
 jeded for a total lofs in the outward voyage, be- 
 caufe it is impoffible at that period to fay, whether 
 the condition of convoy homeward fliall be ful- 
 filled or not. 
 
 It is not enough, however, to afford room for 
 a partial return of premium, that the adventure 
 be partly conditional. Becaufe it is not fuffici- 
 ent the voyage be divifible ; it is farther requi- 
 fite that there be fome data^ in what manner to 
 make the divilion, and how to apportion the pre- 
 mium on the rifk adually run. For this pur- 
 pofe, a proof muft be adduced, that mercantile 
 people, in the circumllances of each cafe, confi- 
 der a certain proportion of the premium as ade- 
 quate to the different branches of the adventure. 
 Without thefe two circumftances, an adventure 
 partly conditional , and a proof of mercantile 'ufagCy 
 it feems to be eftablilhed that no apportionment 
 can take place. 
 
 Stevenson v. Snow. 
 
 This was a cafe referved at niji pritis before 
 Lord Mansfield, for the opinion of the Court, 
 upon an a6tion brought by the plaintiff, the in- 
 fured, againft the defendant, the infurer, for a re- 
 turn of part of the premium. 
 
 It was an infurancc " upon a fhip at five gui- 
 '* neas/>(?r cent, at and from London to Halifax 
 ** in Nova Scotia, warranted to depart with con- 
 
 " voy
 
 538 Insurance Contract, how dissolved, 
 
 " voy from Portfmouth ; that is to fay, the Ha- 
 " lifax or Louifburgh convoy." 
 
 Before the fhip arrived at Portfmouth, the con- 
 voy was gone. Notice of this was immediately 
 given by the infured to the underwriter ; and, 
 at the fame time, he was delired either to make 
 the long infurance, or to return part of the pre- 
 mium. 
 
 The infured acquiefced in the payment of one 
 and a half per cent, ^s the afcertained premium 
 between London and Portfmouth ; and demand- 
 ed a return of premium upon the other part of 
 the adventure between Portfmouth and Halifax, 
 as the condition had not been fulfilled, and there- 
 fore the policy fo far was void. 
 
 The jury find, that the ufual fettled premium 
 between London and Portfmouth, is one and one- 
 half per cent^.^ They alfo find, that, in circum- 
 ftances like "the prefent, it is cuftomary for the 
 underwriter to return part of the premium , but 
 the quantum uncertain. 
 
 For the plaintiff, it was argued, that as the 
 underwriter had not run the whole rifk, he ought 
 not to retain the whole premium. It was anfwer- 
 ed for the defendant, that the contrad was en- 
 tire, and could not be divided into parts; the 
 premium was given in confideration of the whole 
 voyage complexly ; it was impoffible to appor- 
 tion it, and to fay with certainty what part of 
 the premium the contrading parties might con- 
 lider as correfponding to one part of the voyage, 
 
 and
 
 . Non-performance of Warranties. 539 
 
 and what to another. That whenever the riik 
 had once commenced, the whole premium was 
 gained. If the vefTel had been loft: between 
 London and Portfmouth, the underwriter would 
 have been liable for the whole lofs ; the voyage 
 therefore was commenced, and the whole pre- 
 mium due. 
 
 It was replied, the voyage here is not one en- 
 tire rilk, but divifible. There is one voyage 
 from London to Portfmouth, and another from 
 Portfmouth to Halifax. If the fliip had been loll 
 between London and Portfmouth, the infurer 
 would have been liable ; but he would have been 
 entitled only to a proportion of the premium 
 correfponding to the riik run. See Ord. Coningjh. 
 and Stockh. Magens^ vol. 2. p. 190. 266. 
 
 Lord Mansfield was clear that the rilks were 
 divifible. The other Juftices, Dennison, Fos- 
 ter, and WiLMOT, were of the fame opinion. 
 The one voyage was pure, the other conditional; 
 and the condition had not exift:ed. — Per Cur. — 
 Judgment for the plaintiff. 3. Burr. lytb Nov. 
 1761, 
 
 Tyrie v. Fletcher. 
 
 Fletcher infured Tyrie upon " the (hip Ifahellaf 
 *' at and from London, to any port or place 
 " where or whatfoever, for twelve months, from 
 " the 19th of Auguft: 1776 to the 19th of Au- 
 <' guft: 1777, both days inclufive, at L. 9 per 
 <* cent, warranted free from captures and fcizui'es 
 
 by 
 
 a
 
 540 Insurance Contract, how dissolved. 
 
 ** by the Americans, and the confequences 
 " thereof." In all other refpeds, it was, in the 
 common form, againil all perils of the fea, <&c. 
 The Ihip failed from the port of London, and 
 was taken by an American privateer about two 
 months afterwards. 
 
 The plaintiff having brought an adion for a 
 return of part of the premium, by confent a 
 verdi<5t was found for the plaintiff, fubjed to the 
 opinion of the court. 
 
 For the plaintiff it was argued, that as only a 
 part of the rifk had been run, only a part of the 
 premium was due. Steven/on v. Snow. That 
 was a policy upon a voyage ; but it was ealier 
 to apportion the rilk in a policy upon time like 
 the prefent, than in a policy upon diitance. In 
 the cafe oi Bond v. Nutty the underwriters paid 
 into court a part of the premium, in propojtion 
 to that part of the voyage from which they held 
 themfelves difcharged. The conftrudion of the 
 policy under thefe circumftances ought to be, 
 that it was an infurance for twelve months, at the 
 rate of fo much per month ; as the rilk was only 
 run for two months, the premium advanced up- 
 on the other ten ought to be returned. 
 
 It was argued for the defendant, that the po- 
 licy was one entire rilk ; and that, as foon as 
 the (hip failed from the port of London, that 
 rilk commenced, and the entire premium was 
 due. In the cafes Stevenfon v. Snow, and Bond 
 v» Nutty there were two diftind voyages. If a 
 
 policy
 
 Non-performance of Warranties. 541 
 
 policy upon time may be divided into months, why 
 not into weeks or days. The prefent cafe is not 
 diflinguifhable from an infurance upon a life for 
 a year, with an exception of fuicide, where the 
 party deftroys himfelf within a month. No one 
 ever thought of requiring a return of premium 
 in that cafe, becaufe the rifli is entire ; lb it is in 
 the prefent cafe. -* 
 
 Lord Mansfield faid, there were two gene- 
 ral rules eflabliflied, applicable to the queftion. 
 i/?, That Mhere the rilk has not been run, 
 whether its not having been run was owing to 
 the fault, pleafure, or will of the infured, or to 
 any other caufe, the premium fhall be returned. 
 idlj'i That if the rifk has once commenced, 
 there fhall be no apportionment or return of 
 premium. 
 
 In the cafe of Stevenfon v. Snow, there were 
 two feparate voyages or rifks infured. The ex- 
 ample of a life-policy, quoted by the defen- 
 dant, is precifely in point. 
 
 In the prefent cafe, parties, inftead of infuring 
 from two months to two months, or for any 
 other proportions of time, had made no divifion 
 of time at all. It is one entire contrad from 
 Augufl 1776 to Auguft 1777, and fuppofes the 
 infured to have meant to give one entire fum. 
 
 Aston, J. — This is one entire contra6t. In 
 the cafe of Bond v. Nutt, the voyage was divifi- 
 ble, viz. at a port in Jamaica, and from that port, 
 conditionally, if flie failed before a certain day. 
 
 Y y y WlLLES
 
 54'2 Insurance Contract, how dissolved. 
 
 WiLLES and AsHURST, J. of the fame opinion. 
 Judgment for the defendant. Couper*s Reports^ 
 i%th Nov. iyy7' 
 
 LoRAiNE againjl Thomlinson. 
 
 The plaintiff had underwritten L. 200 on a 
 policy effected at Newcaftle, whereby the Ihip 
 the Chollerford was infured againil capture by 
 the enemy for twelve Tnontts^ in the coafting 
 trade between Leith and the Ifle of Wight, be- 
 ginning the 13th of March 1779, and ending 
 the 13th of the fame month 1780, at the rate of 
 1 5 per cent, per month. 
 
 The fhip was loll in a ftorm, within the firft 
 two of the twelve months for which the infu- 
 rance was made. And the plaintiff brought an 
 adlion for the premium, which, according to 
 the ufage of Newcaftle, had not been paid per 
 advance. The defendant tendered L. 3 as the 
 premium for two months, upon this ground ', 
 that as the infurance was at fo much for each 
 feparate month, the premium was only due for 
 that number of months for which the rilk had 
 continued. A jury, at the aflizes for Northum- 
 berland, returned a verdict fubjecl to the opi- 
 nion of the Court upon this point. 
 
 It was argued for the defendant, that this was 
 not one entire contradt for a year, but an infu- 
 rance from month to month, for twelve months. 
 If the policy had been for a year or twelve 
 months, and the premium a grofs fum, the Court 
 
 could
 
 Non-performance of Warranties. 543 
 
 could not have apportioned it, becaufe the rilk 
 in one month might be greater than in another; 
 but here the parties have apportioned the pre- 
 mium. The only purpofe that they could have 
 for mentioning the monthly proportion, muil 
 have been to afcertain the fum to be returned, 
 in cafe of capture within the year. If it had 
 been meant to be an entire contracl, the premi- 
 um would have been fixed at L. 18 per annum, 
 without any mention of months. 
 
 Lord Mansfield and the Court were very 
 clear. His Lordflrip faid, that it was an infu- 
 rance for twelve months, for one grofs fum of 
 L. 18. They have calculated this fum to be at 
 the rate of 15 s. per month. But what was to be 
 paid down ? Not 15 s. for the firil month, and fo 
 for month to month, but L. 18 at once. 
 
 The pojlea to be delivered to the plaintiff. 
 Douglas' Reports, ijl February ly Si. 
 
 BeRMON OgaUlJl WOODBRIDOE. 
 
 In a policy of infurance on the French fhip 
 Le Pa6lole and her cargo, the voyage was dcfcrib- 
 ed in the following words: " At and from Hon- 
 *' fleur to the coaft of Angola, during her ftay 
 *' and trade there ; at and from thence to her 
 " port or ports of difcharge in St Domingo; and 
 «* at and from St Domingo back to Honflcur.*' 
 The claufe refpeding the premium was as fol- 
 lows. — "Slaves valued at 8co livres /^r head ; 
 *' the fhip at L. 1450 Sterling ; other goods, ^c.
 
 544 Insurance Contract, how dissolved. 
 
 *' as intereft may appear, at a premium of L. 1 1 
 " per cent.''^ 
 
 The fliip failed to Angola, and from thence 
 to the Well Indies. On her way from Angola 
 fhe put in at Cayenne on the coaft of America, 
 and from Cayenne went to Martinico, confeffed- 
 ly out of the courfe to St Domingo. The cap- 
 tain attempted to juftify this deviation upon the 
 footing of neceffity ; but the jury were clear it 
 was not necelTary. Upon their declaring that 
 opinion, it was contended for the plaintiff, that 
 the voyage infured ought to be conlidered as 
 compofed of three diflincl parts, viz. i/?, from 
 Hontleur to Angola ; 2d^ from Angola to St Do- 
 mingo ; 3^, from St Domingo to Honiieur; 
 and that as the laft of thefe had never commen- 
 ced, there ought to be a return of premium up- 
 on it. The jury having likewife found upon 
 this point for the defendant, a new trial was 
 moved for. 
 
 Lord Mansfield, in delivering the opinion of 
 the Court, faid, — The queftion depends on this, 
 whether the policy contains one entire rifk on 
 one voyage, or whether it is to be fplit into fix 
 different rifks ; for by fpiitting the words, and 
 taking at and from feparately, it will make fix 
 inftead of three rifls:s, viz. i. at Honfleur • i,from 
 Honfleur to Angola ; 3. at Angola, &c. Here 
 the infured and infurers confider the premium 
 as an entire fum for the whole, without divifi- 
 pn ; it is ellimated on the whole at 1 1 per cent. 
 
 And,
 
 Non-performance of Warranties. 545 
 
 And, which is extremely material, there is no 
 contingency^ at any period out or home, mention- 
 ed in the policy, which, happening or not hap- 
 pening, is to put an end to the infu ranee. The 
 two cafes of Stevenfon v. S/iow, and Bond v. Nutty 
 which had been founded upon, were quite dif- 
 ferent from this. In thefe cafes, the two parts of 
 the voyage were feparated from each other, by 
 a condition being annexed to one of them, 
 which made it a contingency, whether that part 
 of the infurance fhould take effeft or not. The 
 two cafes of Tyrie v. Fletcher, and Loraine v. 
 Tho?nlin/bn, were very ftrong on the other fide ; 
 for if you could apportion the premium in any 
 cafe, it would be in infurances on time. There- 
 fore we think this an entire ri(k, one voyage, 
 and that there can be no return of premium. 
 The rule difcharged. Douglas"* Reports, id July 
 1781. 
 
 Meyer ■:;. Gregson. 
 
 The defendant infured the plaintiff'* ^/and 
 ^^ from Jamaica to Liverpool, warranted to 
 '■^ fail on or before the firjl of Augufl, at 20 gui- 
 *' neas/>fr cent, to return 8, if fhe fails with con- 
 *' voy." The fhip did not fail till September, 
 and was loft. 
 
 In an aclion at the aflured's inftance for re- 
 turn of premium, the underwriter paid 8 guineas 
 into Court, by way of making a return for con- 
 yoy. The jury found a verdict for 8 guineas 
 
 more,
 
 54^ Insurance Contract, how dissolved. 
 
 more, which was allowing the underwriter to 
 retain 4 guineas for the rifk at Jamaica. Mo- 
 tion to fet alide the verdid, and enter a nonfuit. 
 Lord Mansfield. — It appears from the evi- 
 dence, that the rifk at Jamaica is different on 
 different fides of the ifland *, and it would be 
 endlefs to apportion it. Befides, parties have 
 exprefslj divided the rifk with refpeft to con- 
 voy ; they flipulate a premium of twenty guineas 
 to return 8, if fhe fail with convoy. But there 
 is no fuch divifion with refpedt to the time of 
 failing, fo that it feems to have been intended 
 as an abfolute warranty. In Stevenfon and Snow^ 
 the Court went on its being expreffed fo as to 
 conflitute two voyages ; the ufage being to have 
 convoy from Portfmouth only, and the rifk from 
 London to Portfmouth being exadly known. 
 
 WiLLES, J. thought the premium fhould be 
 apportioned. 
 
 AsHURST, J. agreed with Lord Mansfield. 
 BuLLER, J. — The parties do not appear to 
 have confidered it as two rifks, fo the Court can- 
 not do it for them. All infurances from Ja- 
 maica are at and from ; and although in many 
 inflances the voyage has not begun, yet it never 
 has been fuppofed that a return of premium 
 'fhould take place. The jury had found no 
 ufage. The rule for fetting afide the verdid 
 made abfolute. Eaji» 24. Geo. III. MS» 
 
 Long
 
 Non-performance of Warranties. 54^ 
 
 Long ^^ Allen. 
 The defendant infured the phiintiff, on a fhip 
 the Jamaica^ at and from Jamaica to London, 
 •* warranted to depart with convoy for the voy- 
 " age, and to fail on or before the firil of Au- 
 «' guft, — at a premium of 12 guineas per cent.'' 
 The fhip failed on the 31ft July 1782, but with- 
 out convoy for the voyage. In an adion for 
 returnof premium, (amounting to L. 50, 8 s.) the 
 jury found the fadls above ftated ; and farther, 
 *' that in infurances at Tind froin Jamaica, with a 
 " warranty as in this policy, when the Ihip does 
 ** not fail before the day fixed, or does not fail 
 ** with convoy, it is the ufage to return the premi- 
 ** um, deducing one-half j)^rc^;z/." Qiieftion, for 
 the opinion of the Court, Whether the plain- 
 tiff is entitled to recover?? 
 
 Lord Mansfield. — The law is clear, that if 
 the rifk be once commenced, there can be no 
 return. Hence, in a queftion where diilinft 
 rifks are infured by the fame inftrument, my 
 opinion has been to divide the rilks. I am a- 
 ware there are great diiliculties in apportioning, 
 and therefore the Court have generally leaned 
 againft it. But when there is ufaje, the difficul- 
 ty is removed. 
 
 Willes and Ashurst, J. concurred. 
 Buller, J. — Since Lord Holt's time, a great- 
 er latitude has been adopted in admitting parole 
 evidence, and with regard to the effed of u/a^e 
 in the conftruclion of a policy. Ulage will 
 
 make
 
 548 Insurance Contract, how dissolved. 
 
 make places within the policy which are not 
 within the words. It will explain and even con- 
 trol a policy. The ufage here found is iiniver- 
 fal ; and though the fum of onc-hdlf per cent. 
 may in fome cafes be a fmall allowance for the 
 rifk at Jamaica, yet the underwriter is aware of 
 that. In Meyer v. Gregfon, there was no ufage 
 proved. The pojlea to the plaintiif, Eajl. 25. 
 Geo. III. MS. 
 
 When the policy is null from the begin- 
 ning, fo that the underwriter runs no rifk, and 
 the alTured recovers the premium, the former is 
 allowed to retain one-half per cent, upon the 
 fum infured, as a conlideration for keeping an 
 account of the tranfaction. 
 
 II. Although the premium is exprefled in the 
 policy to be paid by advance, yet it is not fo in 
 fa6t ; but is ufually retained in the hands of the 
 aflured, or of the infurance-broker, until the if- 
 fue of the adventure, when a final adjuftment 
 can take place between the parties. 
 
 Infurance is, in general, executed by the in- 
 tervention of a broker. The broker is, in the 
 firft inltance, the agent of the alfured, from 
 whom he receives an order of infurance, which 
 he fhows to different underwriters ; and if they 
 agree to undertake the rifk, he draws up a for- 
 mal policy in terms of the order, for their fub- 
 fcription. 
 
 If the broker neglecls to take proper meafures 
 for getting the order executed, after having un- 
 dertaken
 
 Non-performance of Warranties. 549 
 
 dertaken it ; or if he varies from tiie terms of it, 
 he mull be refponlible to the merchant, his 
 employer. See Delancey agaiuji Stoddart, in 
 Termly Reports, Mich. 1785. IVilJbn againjl 
 Elliot. In this refpedt, he feems bound to ufe 
 the fame] degree of diligence with any other 
 factor. 
 
 Where a policy is effected by means of a bro- 
 ker, the underwriter mud be fuppofed to look 
 to the broker for payment of the premiums, from 
 the date on which they are underllood to be 
 due. This is believed to be agreeable to the 
 general practice of Britain, as well as found- 
 ed in the reafon of the thing ; though 1 know no 
 cafe, either Englifli or Scotch, in which the 
 point has been exprefsly decided. In the fol- 
 lowing, (colleded by Mr Park,) it became in- 
 diredly the fubjed of enquiry. 
 
 Milton, a broker at Newcaftle, had procured 
 infurance for Bland. Milton, becoming bank- 
 rupt, his affignees fued Bla?id for premiums ad- 
 vanced by Milton for his behoof. One queftion 
 that arofe was, Whether credit was given to the 
 alTured, or to the broker, when the premium was 
 not paid down at the time the infurance was 
 made ? Milton fwore, that, in May 1 764, he had 
 been told by the underwriters, that they would 
 have nothing to do with the affured, which was 
 confidered at Newcaftle as the London prac- 
 
 Z z z tice t
 
 550 Insurance Contract, how dissolved. 
 
 tice : That, from that time, he had always adted 
 on this plan, and had paid, lince that time, 
 L. looo to underwriters, which he had never re- 
 ceived. London brokers were then called, who 
 faid they underftood the underwriters look to 
 them only ; and that the underwriters did not 
 once in ten times knov/ who the affured were ; 
 and that, in cafes of failure, the underwriter 
 came upon the effeds of the broker ; the broker 
 upon thofe of the infured. 
 
 In moft parts of the kingdom, however, this re- 
 fponfibility of the broker does not commence im- 
 mediately on the execution of the policy. The 
 delay of payment of the premium, whether it is 
 to be confidered as an indulgence to the affured, 
 or a matter of right, fuppofes that the broker 
 Ihould be allowed a reafonabie time to exad pay- 
 ment. The period allowed for this purpofe va- 
 ries fo much in different parts of the ifland, is 
 fo fluduating, and depends fo little on princi- 
 ples, that nothing need here be faid with regard 
 to it. 
 
 Although the whole expence of infurance 
 muil ultimately be borne by the affured, yet, in 
 the office now mentioned of colleding the pre- 
 miums, (v/hich neceffarily falls upon the broker, 
 from the refponfibility conneded with his em- 
 ployment,) he appears to ad immediately as a- 
 gent for the underwriter. For the trouble and 
 
 rilk
 
 Non-performance of Warranties. 551 
 
 rifle attending the bufinefs, he is therefore in- 
 demnified by a commiffion of fo much per cent. 
 upon the premiums. The amount of this com- 
 miffion varies exceedingly in difierent fitua- 
 tions. 
 
 In this manner, the broker is fador or agent 
 for both parties, the aflured and the underwriter ; 
 for the aflured, by procuring infurance upon his 
 order ; and, for the underwriter, by colleding 
 the premiums. 
 
 Every fa<5lor or agent has a lien for a balance 
 due to him, upon the goods of his principal. 
 This was found by Sir John Strange, Mafl.er 
 of the Rolls, in the cafe of Kruzer et al. v. Wilcox 
 et al. ; where his Lordfliip decreed, " That a 
 *' faftor has a Hen on goods configned to him, 
 *' not only for incident charges, but as an item 
 ** of mutual account for the general balance due 
 " to him, fo long as he retains the poflTefliion. 
 ** But if he parts with the pofleffion of the goods, 
 *' he parts with his lien; becaufe it cannot then 
 " be retained as an item for the general account." 
 There was another cafe, Gardiner v. Coleman, de- 
 cided in the fame manner. 
 
 An infurance-broker, therefore, as a fador for 
 the aflured, feems to have a lien upon the policy, 
 while it remains in his cuftody, for a balance due 
 by his employer. 
 
 Thus, Mr Amyandh2id got infurance in his own 
 name upon goods the propeity of Mr Meybohm. 
 
 Lord
 
 552 Insurance Contract, how dissolved. 
 
 Lord Mansfield faid — " Suppoling Mv Amy and 
 ** to have made his infurance, not upon his own 
 " account, but as agent for Meyhohm, ftill, as 
 " Amyand has poffeffion of the policy, and ap- 
 " pears to have been a creditor of Meybohm, upon 
 " the balance of accounts between them, at the 
 " time when he made the infurance, he is entitled 
 ** to retain the policy." Godin v. Lond. AJf. Com- 
 pany, I. Burr. 489. 
 
 In the following cafe, it may, perhaps, be 
 doubted, whether the Court of Seflion have not 
 gone a greater length in fuftaining the broker's 
 claim of retention. 
 
 Leslie and Thomson againjl David Linn. 
 
 Le/lie and Tbomfon, infurance-brokers in Edin- 
 burgh, were employed hy Maclean, a merchant 
 in Leith, to get infurance on a Ihip done for him 
 at Glafgow. The brokers, in effedling this in- 
 furance, had the policy taken out in their own 
 names. Accordingly, a lofs having happened, 
 one of the underwriters granted his bill for his 
 Ihare, in favour of Lejlie and Thomfon. This 
 bill, however, was by him tranfmitted to Maclean, 
 who had previoufly got the policy into his cufto- 
 dy, upon which Maclean indorfed and delivered 
 it to Linn, 
 
 Lejlie a?id Thomfon infilled for delivery of the 
 bill to them, on this ground : That Maclean ha- 
 ving
 
 Non-performance of Warranties. ^53 
 
 ving been previoully endebted to them, they, 
 with a view to avail themfelves of the pofTeflion 
 of the policy, for operating their payment, in 
 the event of a lofs, had accepted the commillion 
 from Maclean^ and, for their farther fecurity, 
 had the policy made out in the above manner. 
 In a competition with regard to this bill, appear- 
 ance having been made for Linn^ they, in fup- 
 port of this claim. 
 
 Pleaded : The bill in queftion being payable 
 to them, and not to Maclean^ the indorfation in 
 favour of Linn^ by the latter, cannot confer the 
 fpecial privileges competent to indorfees of bills 
 of exchange. Linn, therefore, in this competi- 
 tion, ftands on the fame footing as Maclean him- 
 felf would have done •, and the queftion is, which 
 of the parties has right to the contents of the bill, 
 as a part of the infured values payable by the un- 
 derwriters ? 
 
 An infurance-broker is to be confidered as a 
 fadior adling on commiflion ; and as it is efta- 
 blifhed, that a fador is entitled to retention of 
 the fubjedl of his factory, for fatisfadion of debts 
 due to himfelf by his conftituent ; fo it is lawful 
 for an infurance-broker to retain pofleffion of the 
 policy, for fecurity or payment of debt owing to 
 him, by the party on whofe commillion he ads. 
 This rule is founded on the pradice of mer- 
 chants ', and in England has been exemplified by 
 
 a
 
 554 Insurance Contr.act, how dissolvedo 
 
 a judgment of the Court of King's Bench, Godin 
 V. Lond. AJfur, Co. In this particular cafe, the 
 policy was made out in the names of LeJIie and 
 Thomfon^ and therefore, though Maclean actually 
 got it into his cuftody, the efFed refpefting the 
 latter is the fame as if it had ftili remained in 
 the poifeffion of the former. 
 
 Anfwered : The power of retention competent 
 to a fador, is not difputed. But an infurance- 
 broker adting in his proper fphere is not a factor. 
 If indeed the infured, befides commiffioning him 
 to make the infurance, which is his peculiar of- 
 fice, were farther fpecially to authorife him to re- 
 tain the policy, and, in the event of a lofs, to re- 
 cover the fums underwritten, then he might fo 
 far alTume the character of fadtor, and plead 
 the privileges of fuch. But whilft his employ- 
 ment is not thus extended beyond its proper li- 
 mits, his commiffion is ftridtly confined to the 
 effecting of the infurance, by making the bar- 
 gain with the underwriters ; upon his doing 
 which, it is his duty inftantly to deliver up the 
 policy to his employer, who may have immediate 
 occafion for it, as in the event of his transferring 
 the cargo fo infured to a purchafer. As for the 
 policy in this cafe, being framed in the name of 
 the infurance-brokers, thatcircumftance multpafs 
 for nothing, as being unauthorifed by Maclean. 
 
 The Lord Ordinary " preferred David Linn to 
 
 " the principal fum and intereft contained in 
 
 " and due by the accepted bill produced." 
 
 The
 
 Non-performance of Warranties. 555 
 
 The Court, however, altered that interlocutor, 
 and preferred Lejlie and Tbomfon, Fac. Coll. 
 July a^. 1783. 
 
 In the fame manner, the broker has a fimi- 
 lar right of retention, for money due by the un- 
 derwriter, upon the premiums in his hands. 
 
 INDEX.
 
 APPENDIX. 
 
 No. I. Form of a London Policy on Sbippin^ and Mercbandift. 
 
 IN the name of God, Amen. Mejfrs A, B. and Co. as well 
 in their own names, as for and in the name and names of 
 all and every other perfon or persons, to whom the fame doth 
 or ihall appertain, in part, or in all, doth make afTurancc, and 
 caufe themfelvesy and them, and every of them, to be infured, 
 loft or not loft, at and from Hull to Hamburgh, upon any kind 
 of goods, and merchandife ; and alfo upon the body, tackle, appa- 
 rel, ordnance, munition, artillery, boat, and other furniture of 
 and in the goodfhip, or veffel, called the Prince Gallitxin, a 
 Ruffian fhip, whereof is mafter under God, for this prefent 
 voyage, Jacob Tretiaccff, or whofoever elfe ftiall go for ma- 
 fter in the (aid ftiip, or by whatfoever other name or names, 
 the fame ftiip, or the mafter thereof, is, or fliall be called, or 
 named. Beginning the adventure upon the faid goods and 
 merchandifes, from the loading thereof aboard the faid fhip at 
 Hull, or elfevjhere, upon the faid ftiip, <b'c. and fo (hall conti- 
 nue and endure during her abode there, upon the faid fliip, 
 <b'c. ; and further, until the faid ftiip, with all her ordnanctf, 
 tackle, apparel, i^c. and goods and merchandifes whatfoever, 
 ftiall be arrived at Hamburgh, upon the faid Hiip, isfc. until 
 flie hath moored at anchor twenty-four hours in good fafety ; 
 and upon the goods and merchandifes, until the fame be there 
 difcharged and fafely landed. And it (hall be lawful for the 
 faid (lup, i^c. in the voyage, to proceed and fail to, touch 
 and ftay at, any ports or places whatfoever, without preju- 
 dice to this infurance. The faid (hip, (i;'f. goods and mcr* 
 chandifes, i^c. for fo much as concerns the affurtds and alfu- 
 
 rers in this policy, arc, and fhall be valued at Touching 
 
 the adventures and perils, which we the affurers are content- 
 ed to bear, and do take upon us in this voyage ; ihcy are of 
 
 A a a a tht
 
 5J8 APPENDIX. 
 
 the feas, men of war, fire, enemies, pirates, rovers, thieves, 
 jettifons, letters of mart, and counter-mart, furprifals, takings 
 at fea, arrefts, reftraints, and detainments of all kings, prin- 
 ces and people, of what nation, condition, or quality whatfo- 
 ever ; baratry of the mailer and mariners, and all other 
 perils, lofles, or misfortunes, that have, or fhall come to the 
 hurt, detriment, or damage of the faid goods and merchan- 
 difes and fliip, 'is'c. or any part thereof. And in cafe of any 
 lofs or misfortune, it fhall be lawful to the affureds, their fac- 
 tors, fervants, and affigns, to fue, labour, and travel foi", in 
 and about the defence, fafeguard, and recovery of the faid 
 goods and merchandifes, and fhip, i^c. or any part thereof, 
 without prejudice to this infurance j to the charges whereof, 
 we the aflurers will contribute, each one according to the 
 rate and quantity of his fum therein aflured. And it is agreed 
 by us the infurers, that this writing, or policy of aflurance, 
 fhall be of as much force and effeft, as the furell writing or 
 policy of afTurance heretofore made in Lombardftreet, or in 
 the Royal Exchange, or elfewhere, in London j and fo we 
 the aflurers are contented, and do hereby promife and bind 
 ourfelves, each one for his own part, our heirs, executors, 
 and goods, to the aflureds, their executors, adminiftrators, 
 and affigns, for the true performance of the premifes, confef- 
 ling ourfelves paid the confideration due unto us for this afTu- 
 rance, by the aflured, at and after the rate of five guineas 
 per cent. In witnefs whereof, we the afliirers have fubfcri- 
 bed our names and fums affured, in London. 
 
 N. B, Corn, fifh, fait, fruit, flour, and feed, are warranted 
 free from average, unlefs general, or the fhip be flrand- 
 ed ; fugar, tobacco, hemp, flax, hides, and fkins, are 
 warranted free from average, under five pounds per cent. 
 and all other goods j alfo the fhip and freight are war- 
 ranted free of average, under three pounds per cent, un- 
 lefs general, or the fhip be branded. 
 
 No.
 
 N D I X. 
 
 No. II. A Policy from Fire, ufed in Stolland. 
 
 5S9 
 
 TTI JHereas a. B. merchant in has paid tlie fum 
 
 ' '^ cf twelve Jlnllings and eight pence to the Society of the 
 Afllirance Company, againft loflcs by tire, and ha; 
 
 agreed to pay, or caule to be paid to them, at their office in 
 
 the fum of twelve fhillings, at the term of Martinmas 
 
 1787, and the like fum o^ twelve fbillings, at the faid term of 
 Martinmas, yearly, during the continuance of this policy, tor 
 infurance from lofs or damage by fire, for goods not haxuirdous 
 in hisfhop,Jlone,flated, or tiled, called fttuated in the 
 
 Middle Street ofKewcaflle, only not exceeding Jix hundred p:;unds. 
 Now know ye, That, from the date of thefe prefcnts, and 
 fo long as the faid A. B. fliall duly pay, or caufe to be paiil, 
 the faid fum of tivehe fhillings, at the term and place atorc- 
 faid, and the Directors of Paid Society for the time, llrjll 
 agree to accept the fame, the flock and fund of the faid Socie- 
 ty fhall be fubjeifl and liable to pay to the faid A. B. his heirs, 
 executors, or affignecs, all fuch his damage and lofs, which he 
 the faid A. B. fliall fuffer by fire, not exceeding the fum of fx 
 hundred pounds, according to the tenor of the printed propo- 
 fals, iflued by faid Society, bearing date the 20th May 1783. 
 
 In wltnefs whereof, we ( Dircaors of the faid 
 
 Society for the time being) have fubfcribed thele prcfcnt* 
 
 at the 23d day of Odober, in the year of our Lord, 
 
 one tboufand fcven hundred and eighty-fix yeari. 
 
 I 
 
 No. III. A Scotch Policy on Lives. 
 
 N the name of God, Amen. Know all men, by thefe pre- 
 
 • fents, that we, the fublcribers, merchants in have 
 
 afTured, likeas each of us, for ourfelvcs, do, by thefe prefcnts, 
 alTure, to and in favour of Mr A. B. merchant, as agent for 
 
 C. D. Efq; of the feveral fums of money annexed to our 
 
 refpedive fubfcriptions underwritten, upon the life of E. F. 
 
 valued at pounds Sterling } which faid £. F. is at prc- 
 
 fent refiding in and is undcrltoud to rcfidc in Great 
 
 BriiaJD
 
 $66 APPENDIX. 
 
 Britain or Ireland, during the continuance of this afliirance \ 
 and the condition of this aflurance is fuch, that if the faid 
 £. F. fhall die, or depart this life, by any ways or means 
 "whatfoever, (fuicide and the hands of juflice excepted,) at any 
 time on or between the ift day of May 1784, and the ift day 
 of May 17B5, both days inclufive : That we the fubfcribers, 
 for ourfelves, feverally, and our feveral heirs, executors, ad- 
 miniftrators, or afligns, and not the one for the other or others 
 of us, engage and promife, that we, refpe6tively for our- 
 felves, our refpeftive heirs, adminiftrators, or afligns, Ihall 
 pay, or caufe to be paid into the faid y^. B. for behoof 
 of the faid C. D. or his heirs, adminiftrators, or afligns, the 
 full fum or fums of money, which we have hereunto fub- 
 fcribedj hereby confefling ourfelves paid the confideration 
 
 due unto us by the affured, after the rate of pounds 
 
 Sterling, for each hundred pounds Sterling fubfcribed by us. 
 And it is agreed, that this writing of aflurance {hall be of as 
 much force and effect as the fureft policy, or writing of aflu- 
 rance, made in London ; and alfo, that in cafe of any difpute 
 or difference arifing relative to this policy, it fhall be referred 
 to two indifferent perfons, one to be chofen by the affured, 
 and the other by the affurers, who fliall have full power to ad- 
 juft the fame, with power to them to chufe a third perfon to 
 be overfman and umpire between them j and their award 
 
 fhall be obligatory upon both parties. At ifl day of 
 
 April 1784, in prefence of thefe witneflfes, G. H merchant 
 
 in and J. K. his clerk, by whom thefe prefents are 
 
 written. 
 
 INDEX
 
 INDEX OF THE CASES. 
 
 Pace. 
 A. 
 
 Arnold v. Godin, - - 103 
 
 Affievedo v. Cambridge, - - 318 
 
 B. 
 
 Belts againft Carman, (note), - - 38 
 
 Barbour againft Fletcher, - - 86 
 
 Bates againft Graham, - - 9^ 
 
 Boyfield V. Brown, . _ - 285 
 
 Barclay and Collier, - - 3^' 
 
 Bize againft Fletcher, - - 411—474 
 Bynkerflioek, (three cafes from him on the fubjeft 
 
 of intended alteration of the voyage), 437, &c. 
 
 Bean v. Stupart, - - 474 
 
 Bain againft Kippen, - ' 445 
 
 Buchanans v. Hunter-Blair, - - 447 
 
 Bond V. Gonzalez, - - - 4^7 
 
 Bernardi againft Motteux, - - 497 
 
 Barzillay v. Lewis, ... 498 
 
 Bond V. Nutt, - - 5*^^ 
 
 Bermon againft Woodbridge, - - 543 
 
 C. 
 
 Carter 7^. Boehm, - - * 77 — 5* 
 
 Court V. Martineau, - - 8a 
 
 Cazalet and others v. St Barbe, - - 3°* 
 
 Cockayne v. Frazer, - - 359 
 
 Chitty V. Selwyn, - - " 394 
 
 Cock ^;. Townfon, - - 395—43^ 
 
 Camden v. Cowley, (note), - • 399 
 
 D'Acofta
 
 INDEX. 
 
 Page. 
 D. 
 
 D'Acofta V. Scanderet, - - rg raj 
 
 D'Acofta V. Firth, - - 299 263 
 
 Davis V. Gildart, - - - 27 2 
 
 Dean v. Dicker, - - - 214 
 
 De Paiba 11. Ludlow, - - 21^ 
 
 Daubony v. Read, - - . 215 
 
 Delancy againft Stoddart, - - 412 
 
 Dunlop apainft Allan, - - aia 
 
 Danmore againft Allan, - - 483 
 
 Dur.more againft Gildart, - - ^qi 
 
 De Hahn v. Hartley, - - - rjQ 
 
 Dunmore and Co. againft Allan, Campbell, and others, 522 
 
 Elton V. Brogden, 
 
 - 
 
 
 162 
 
 Edmonfton v. Jackfon, 
 
 - 
 
 - 
 
 297 
 
 Earle againll Harris, 
 
 " m 
 
 - 
 
 508 
 
 Eden againft Parkinfon, 
 
 - 
 
 - 
 
 5^S 
 
 
 F, 
 
 
 • 
 
 Fitfherbert v. Mather, 
 
 - 
 
 . 
 
 68 
 
 Fitzgerald v. Pole, 
 
 - 
 
 
 3^5 
 
 Fox V. Black, 
 
 w m 
 
 - 
 
 401 
 
 Fofter V. Wilmer, 
 
 G. 
 
 
 443 
 
 Grieve againft Young, 
 
 - 
 
 - 
 
 65 
 
 Gregfon v. Gilbert, 
 
 - 
 
 
 186 
 
 Grant v. Parkinfon, 
 
 . 
 
 261- 
 
 -228 
 
 Glover V. Black, 
 
 - 
 
 . 
 
 235 
 
 Gregory v. Chriftie, 
 
 - 
 
 - 
 
 ib. 
 
 Godin V. the London AfTurance Company, 
 
 
 274 
 
 Gofs V. Withers, 
 
 - 
 
 
 289 
 
 Gavin Kempt and Co, v. 
 
 Glen, 
 
 - 
 
 3'=>S 
 
 
 
 Guibert
 
 INDEX. 
 
 Guibert v. Reidrtiaw, 
 
 Grahame and Coulter agalnft Macnair, 
 
 Gordon v. Morley, and Campbell v. Bourdieu, 
 
 H. 
 Herdman, M'lver and M'AUum, 
 Hodgfon V. Richardfon, 
 Henkle v. R. Exch. AfT. Co. (note), 
 Hamilton v. Mendes, 
 Hanbury and King, 
 Hog and Kinloch v. Bogle and Scot, 
 Hubbert againft Newenham, 
 Hubbert v. Pigou, 
 Hubbert v. Bainbridge, (note)- 
 
 J. 
 
 Johnflon againft Sutton, 
 
 Jones againft Schmoll, 
 Jenkins v. Mackenzie, 
 Jalabert and Nevill v. Collier, 
 JefFery v. Legandra, 
 
 Page. 
 
 408 
 
 il;. 
 
 487 
 
 51 
 
 58 
 
 97 
 292 
 310 
 
 402 
 
 479 
 518 
 
 19 
 
 189 
 
 321 
 
 323 
 526 
 
 K. 
 
 Kay againft Young, 
 
 Knight V. Cambridge, 
 
 Kent V. Bird, 
 
 Kulen Kemp and others v. Vigne, 
 
 Kemp and Andrews, 
 
 Kenyon v. Berthon, 
 
 62 
 156 
 236 
 238 
 
 475 
 
 L. 
 
 Lampro (Samuel), 
 Lewen v. Swaffb, 
 Lockyer v. OfHey, 
 Lynch V. Dalzell, 
 Le Cras v. Hughes, 
 
 51 
 
 178 
 200 
 
 221 
 
 226—372 
 
 La wry
 
 INDEX. 
 
 Lawry and another v. Bourdieu, - 236 
 
 Le Pypre v. Farr, - - - 253 
 
 Lane and Cafwell 1). Collier, - - 286 
 
 Lutwitch V. Gray, . - . 347 
 
 Lewis v. Rucker, - - - 268 
 
 Lavabre againft W ilfon, and ditto againft Walter, 409 
 
 Lilly V. Ewer, - - - 480 
 
 Lethulier's cafe, _ _ _ - 486 
 
 Loraine againft Thomlinfon, - - 542 
 
 Long V, Allen, - - • 547 
 
 Leflie and Thomfon againft David Linn, - 552 
 
 M. 
 
 Mayne v. Walter, - - 81 
 
 M'Dowal V. Frafer, - - 85 
 
 Motteux V. London Aflurance Company, 95 — 408 
 
 Mills V. Roebuck, - - 99 
 
 March (Earl) v. Pigot, - - 107 
 
 M'Nair v. Coulter and others, - 255 
 
 Milles V. Fletcher, - - - 295 
 
 Manning v. Newnham, - - 303 
 
 Mafon V. Skurray, - - - 358 
 Marfhall, Hamilton and Co. v. Crawford, Barns 
 
 and others, - - 395 — 12 1 
 
 Mollifon V. Staples, - - 221 
 
 Manning v. Gift, . _ - 4gj 
 
 Ditto V. ditto, - - 488 
 Meyer v Gregfon, ... j4^ 
 
 Milton (affignees of) v. Bland, - 550 
 
 N. 
 Nutt and others, affignees, h'c. of Hague, a bank- 
 rupt V. Bourdieu, - - 171 
 Newby v. Reid, - - - 272 
 Noble againft Kennoway, = - 128 — 425 
 
 Pray
 
 INDEX. 
 
 Page. 
 P. 
 
 Pray ^nd others v. Edle, - - 245 
 
 Perfeverance (cafe of), - - 120 
 
 Pringle v. Hartley, - - - 306 
 
 Pond V. King, - - - 320 
 
 Planche and Jacquery againfl Fletcher, 23 — 426 
 
 Plantamour againfl Staples, - - 41" 
 
 Pelly V. Royal Exch. AO*. Co. - 4^9 
 
 Pawfon V. Ewer, - - - 47* 
 
 Pawfon V. Barnevelt, - - 474 
 
 Phynne and others againft Wetfter, - - 528 
 
 R. 
 
 Rook V. Thurmond, - - 57 
 
 Robertfon -j. Ewer, - - - 191 
 
 Richardfon and Co. :;. Stodart, h'c. - 197 
 
 Roche V. Thorn fon, - - 205 
 
 Roebuck V. Hammerton, - - 220 
 
 S. 
 
 Stewart againft Mori fon, - "59 
 
 Shirley againft Wilkinfon, - - 64 
 
 Stewart againft Dunlop, (note), - - ']! 
 
 Seaman v. Fonnereau, - " 73 
 
 Stackpole v. Simon, - - * ^7 
 
 Sparrow v. Carruthcrs, - - 124 
 
 Stamma v. Brown, - - - 160 
 
 Saddler's Company 7;. Badcock, - - 223 
 
 Storey v. Brown, - - - 288 
 
 Spencer I'. Franco, - - - 3*^ 
 
 Salift)ury v. Townfon, - - 4*8 
 
 Salvador v. Hopkins, - - - 4^9 
 
 Steven and Co. againft Douglas, - - 45^ 
 
 Simmond againft Buydell, - - 494 
 
 Stevenfon i;. Snow, - - - 537 
 
 Tongue
 
 IN D E X. 
 
 Page. 
 T. 
 
 Thomas (le) cafe of, - ■» - 90 
 
 Tongue ^. Watts, - - 118 
 
 Thellufon ^. Fletchei;, - - 317 
 
 Tierney ^'. Etherington, - - 422 
 
 Taylor v. Woodnels, - - 490 
 
 Thellufon againft FergulTon, - - 504 
 
 Tyrie v. Fletcher, *- - 539 
 
 V, 
 
 Valleio and Echalai v. Wheeler, ^ 169 
 
 Vincentio de Medicis (cafe of), - - 252 
 
 Vi<fl:orin v. Cleeve, - - 513 
 
 W. 
 
 Whlttingham againft Thornborough, - 48 
 
 Watt againft Ritchie, - - 92 
 
 Waples V. Eames, - - 120 
 
 Wilfon V. Wordie, . - - 258 
 
 Whitehead and Bance, - - 315 
 
 Wilfon ^;. Smith, - ' - - ' SSS 
 
 Wilfon and Co. v. Elliot, - - 403—460 
 
 Wooldridge againft Boydell, - - 444 
 
 Woolmer v. Muilman, - - i^'i 
 
 Wilfon ^. Ducket, - » — S3^.
 
 ERRATA. 
 
 Page vii. Preface, between Sir William and Burrovj^ infert Blackjl^at, 
 Sir "James. 
 
 — 6. at the bottom, for ilth read izth century. 
 
 — 129. Notes, for txtc/it read evs»t. for "u-/// read A"'/* 
 
 — 159. line 2. for agreeable read agreeably. 
 
 — i8i. 1, for -whole general read vibole ef the genera/. 
 
 — 337; for httrds read jercii. 
 
 — — 406. Note, for Cafurigej, read Cafarcgis. 
 —— 409. line 3. the words he muji ftiould not be put in Ita'.^j, 
 
 — 434. _^ 8. from the bottom, for itifured read injuret 
 
 — 459. for Eajl of the reck cf Ai'fa, read^r^?-
 
 -fc 
 
 'Oi, 
 
 ■f. 
 
 LAW T 
 
 ^ \7?"V 
 
 /^4
 
 AA 000 745 443 2