self, and not in solido, a risk to the amount of his subscription.a But incorporated companies began to multiply and supplant private underwriters, and the business of insurance in the United States is now carried on almost exclusively by incorporated companies. Individuals and unincorporated partnership companies are still at liberty to carry on the business of insurance to any extent they please, and the success of any such competition with the incorporated companies would depend upon the ability to command confidence, and the judgment and skill with which the business was conducted.b (2.) Of the terms and subject of the policy, and the force of usage thereon. If the ship be specified in the policy, it becomes part of the contract, and no other ship can be substituted without necessity; but the cargo may be shifted from one ship to another, if it be done from necessity, and the insurer of it will As early as 1725, Francis Rawle, of Philadelphia, proposed the establishment, under legislative sanction, of a marine insurance office. This he did in a small volume printed by Dr. Franklin, and the first book he ever printed. See App. to Mr. Wharton's memoir of the late William Rawle, Esq. b Marine insurance was formerly a lawful business in New-York, equally open to all the world; but in 1829, the legislature, by statute, Laws of New-York, sess. 52. c. 336,) prohibited marine insurance, or lending on respondentia or bottomry, effected within the state, to all persons and companies residing in any foreign country, acting by any agent here. Persons and associations in other states, effecting such insurances in New-York, were taxed ten per cent. on their premiums. The same check and prohibition applies to insurances in New-York against fire. N. Y. Revised Statutes, vol. i. 714. See further, infra, p. 371. The statute law of Pennsylvania also prohibits all kinds of insurance by foreign corporations or companies within the state. Purdon's Dig. 545. The law in Massachusetts is more liberal, and it allows incorporated insurance companies in other states and in foreign countries, to insure by their agents, upon compliance with certain conditions, intended to guard against abuse. Act of 1816, and Revised Statutes of 1835. Every incorporated insurance company in Massachusetts may insure vessels, freight, money, goods and effects, and against captivity of persons, and on the life of any person at sea, and on money lent upon bottomry and respondentia, and against fire : on dwelling houses and other buildings, and on merchandise or other property within the United States. Statutes, 1817. 1819. Revised Statutes, 1835, part 1. tit. 13. c. 37. sec. 2. A policy of insurance must be in writing, according to uniform usage and practice, and this is specially required by the statute of 35 Geo. III, and by most of still be liable. An insurance on the body of a ship, except when varied by special agreement, sweeps in, by the comprehensiveness of the expression, whatever is appurtenant to the ship. This is the doctrine taught in all the continental writers on insurance, as well as in the English law. An insurance on a ship means prima facie the legal interest in the vessel, and not the mere equitable interest; and if the policy be intended to cover the equitable interest only, that Duer the foreign ordinances. (1) Printed forms of policies are universally in use. on Insurance, vol. i. 60. 62 and 64. n. 3. There are said to be six essential parts to every policy: 1. The parties. 2. The premiums. 3. The subject insured. 4. The amount insured. 5. The risks. 6. The voyage or term of the risk; and by the statute of 35 George III. no duration of the term of any policy can be for a longer term than 12 months. Duer, ub. sup. 59. 101. 107. n. 3, 4. The application for insurance is usually made in writing. The policy need only be signed by the insurer, for the obligations on the part of the assured are conditions merely on the performance of which his right to indemnity depends. The policy itself contains an acknowledgement of the premium. Id. 65. It is perfect and binding as soon as the terms are agreed on, and the policy signed by the designated officer, without actual delivery. Kohne v. Ins. Co. N. America, 1 Wash. C. C. Rep. 93. Even if the terms of the policy be agreed on in writing, equity will enforce the execution of the policy or payment, though a loss occurs in the mean time. Motteux v. The London Ass. Co. 1 Atk. 545. Perkins v. Wash. Ins. Co. 4 Cowen, 646. McCulloch v. Eagle Ins. Co. 1 Pick. 278. This last case allows a remedy in such case at law. Mead v. Davison, 3 Adol. & Ellis, 303. The owner may change the master of the vessel insured in his discretion, without prejudice to the insurance, provided it be done in good faith, and a substitute of competent skill be provided. Platt, J., Walden v. Firemen's Ins. Company, 12 Johnson, 138. It is immaterial whether the written words of a policy be inserted in the body of the instrument, or written on its face, or in the margin. Dattahn v. Hartley, 1 Term, 343. Bean v. Shepart, Doug. 11. Kenyon v. Berthon, id. 12. n. But Mr. Duer thinks, and justly, that a memorandum on the back of a policy, not referred to in the instrument, nor signed by the insurer, is a nullity. Duer on Insurance, vol. i. 76. So a material alteration in a policy, without the consent of the insurer, though made in the margin or by interlineation, destroys it; if the alteration be immaterial, it is otherwise. The cases to this point are collected in Duer on Insurance, vol. i. 143. n. H. Id. p. 81. Insurances are to be liberally construed in favour of the assured, for that is most consonant to the intentions of the party. So an exception to the risks is to be construed strictly against the insurer, and for the same reason. Id. 161. ↳ Emerigon, tome i. 423. Boulay Paty, tome iii. 379. Pardessus, tome iii. n. 758. Plantamour v. Staples, 1 Term Rep. 611, note. (1) So held in this country, and that a verbal waiver of forfeiture is not valid. Cockerill v. Cincinnati Mut. Ins. Co. 16 Ohio R. 148. *258 *interest ought to be disclosed to the insurer. An insurance will be valid without naming the ship, as upon goods on board any ship or ships; and it becomes sometimes a nice question as to the application of the loss, when there are two or more policies of that loose description on different parcels of goods. So, it will be valid if made on account of A., or of whom it may concern. In England, the statute of 25 Geo. III. c. 44, prohibits insurances in blank, as to the name of the insured; and the name of the party in interest, or some agent in his behalf, must be inserted, and the policy cannot be applied to any property which does not belong to the party named, or in which he is not interested; but the suit on the policy may be brought in the name of the principal or agent. The interest of the real owner may be averred and shown; but if one partner insures in his own name only, the policy will cover his undivided interest in the partnership, and no more. If the policy has the words, and whomsoever it may concern, then it will cover the whole partnership interest;f and Valin and Boulay Paty think it covers the whole, if the policy be generally on his goods.g On such a policy an action may be maintained by any one of the owners whose interest was intended to be insured by it. It will cover a person who has but a special interest, as by lien or otherwise. Those general words, whom it may concern, will only apply to the person having an interest in the subject insured, and who was in the contemplation of the contract.i. But a policy may be applied to cover the interest Ohl v. Eagle Ins. Company, 4 Mason's Rep. 390. Emerigon, tome i. 173. Kewley v. Ryan, 2 H. Blacks. 343. Henchman v. Offley, ibid. 345, note. Boulay Paty, tome iii. 528. 531, tome iv. 28. a Cox v. Parry, 1 Term Rep. 464. It may be brought in the name of the party by whom or for whom the contract was made. Bayley, J., in Sargent v. Morris, 3 B. & Ald. 280, 281. • Valin's Com. tome ii. 34. 1 Emerigon, 293, 294. Graves & Barnwell v. Boston Marine Ins. Company, 2 Cranch's Rep. 419. Dumas v. Jones, 4 Mass. Rep. 647. Turner v. Burrows, 5 Wendell's Rep. 541. Lawrence v. Sebor, 2 Caines' Rep. 203. Valin, tome ii. 34. Boulay Paty, tome iii. 386. The Pacific Ins. Company v. Catlett, 1 Wendell's Rep. 561. S. C. 4 ibid. 75. i Newson v. Douglass, 7 Johnson & Harris' Rep. 417. Bauduy v. Union Ins. Company, 2 Wash. Cir. Rep. 391. De Bolle v. Pennsylvania Ins. Company, 4 intended to be insured, though the owner of it was not known to the parties, provided the terms of the policy will permit it.a The form of the policy in England and the United States, contains the words lost or not lost; and if the subject insured be lost, or has arrived in safety when the contract is made, it is still valid, if made in ignorance of the event, and the insurer must pay the loss, or not pay it, as the *case *259 may be. This is laid down by the foreign jurists as a general principle of insurance, without reference to those words which are said to be peculiar to the English policies; and, it is said, that without them the policy would be void, if the subject was lost when the insurance was made. There is no English adjudication to that effect; and the point may well be doubted, inasmuch as all the continental authorities hold such insurances to be valid, if made in ignorance of the existing loss. (1) Wharton, 68. The insured must have an interest in the property when the insurance was made, and at the time of the loss. Hancox v. Fishing Ins. Company, 3 Sumner, 142. ■ Buck v. Chest. Ins. Company, 1 Peters' S. C. Rep. 151. b A policy with those words will cover the loss if the interest was not acquired until after the loss. Sutherland v. Pratt, 11 Meeson & Welsby, 296. Emerigon, tome ii. 121. 5 Burr. Rep. 2803, 2804. Park on Insurance, 31. Rota Genua Decisio, 42. n. 8. Roccus, de Ass. n. 51. Ruggles v. Gen. Int. Ins. Company, 4 Mason's Rep. 74. of North America, 1 Wash. Cir. Rep. 93. In Hammond v. Allen, 2 Sumner, 397, Mr. Justice Story thinks that the policy would be binding, though the ship was lost at the time, and though the policy had not the words lost or not lost, if the parties acted in mutual ignorance of that event. (1) It is said, in Arnould on the Law of Marine Insurance, that this clause is not strictly necessary, as there can be no reason why a previous loss should prejudice the insurance, if both the assured and the underwriters were equally ignorant of the loss at the time. 1 Arnould Ins. 26. Am. edit. Since the publication of the last edition of the Commentaries, a treatise on insurance, with the above mentioned title, has been published in England, by Joseph Arnould, Esq., barrister at law. This work has been published in this country with very valuable notes, by J. C. Perkins, Esq. It is to be wished that this admirable work had met the eye of the commentator himself. Its perspicuous style, orderly method, fullness of learning and clearness of reasoning, entitle it to a high place among the works on insurance, mentioned at the close of this lecture. The American lawyer is gratified to find, what is not often seen in English treatises, a generous and abundant reference to American decisions and writings on a subject common to all commercial nations. A policy on a voyage from abroad may be good, though it omits to name the ship, or master, or port of discharge, or consignee, or to specify and designate the nature or species of the cargo, for all these may be unknown to the insured. when he applies for the insurance. The policy, in such a case, will be good to the amount insured, if effects be laden in any ship, to any port, and to any consignee. The text writers, however, require cargo of the same form and species, and the policy will not cover the same thing under a new modification, if the essential character of the article has changed; as a policy on cargo of wheat will not cover a cargo of flour. A policy on cargo or goods generally will not cover goods stowed on deck, nor live stock, unless there be some local mercantile usage to give extension to the terms.c And a policy may be on bills of exchange, if they truly exist. If bottomry, or respondentia interest, be insured by the lender, it has been required to be insured eo nomine, and not under the general description of goods. But this rule was originally adopted on the ground of mercantile usage; and where the usage was shown to be different, such *260 an interest was allowed *to be covered by a policy on goods. If any of the terms used in a policy, or representation made to the insurer, have, by the known usage of trade, and the practice, as between the insurers and the insured, acquired an appropiate or commercial sense, they Le Guidon, c. 12. art. 2. Ord. de la Mar. tit. des Assurances, art. 4. Code de Commerce, art. 337. Boulay Paty, Cours de Droit Com. tome iii. 411, 412. Boulay Paty, tome iii. 388, 389. See infra, p. 310. • Lenox v. United Ins. Company, 3 Johns. Cas. 178. Allegre v. Maryland Ins. Company, 2 Gill & Johnson, 136. Wolcott v. Eagle Ins. Company, 4 Pick. 429. Smith v. Miss. Mar. and Fire Ins. Company, 11 Louisiana Rep. 142. Taunton Copper Company v. Merchants' Ins. Company, 22 Pick. R. 108. A general policy on freight will only cover freight earned by carrying goods under deck. Adams v. Warren Ins. Company, ibid. 163. d Palmer v. Pratt, 2 Bing. 185. Gold and silver have been considered by the text writers to be covered by a policy on goods, wares and merchandise. Marshall on Ins. 327. Hughes on Ins. 128. Phillips on Ins. 66. And current bank bills have been adjudged to be covered under the generic name of property. Whiton v. Old Colony Ins. Co. 2 Metcalf's R. 1. • Glover v. Black, 3 Burr. 1394. Robertson v. Union Ins. Company, 2 Johns. Cas. 250. Kenney v. Clarkson, 1 Johns. Rep. 385. Gregory v. Christie, 1 Condy's Marshall on Insurance, 118. |