Proof of

the interest

of the in

sured.

sible to shew that a port in Friesland is, in mercantile language, a port in the Baltic a.

The interest in the subject matter insured must be proved as laid in the declaration; if it be a ship, evidence of acts of ownership, as loading the ship, paying the persons employed, providing stores, or the like, is presumptive evidence of the plaintiff's title. Where the interest is alleged to be in a party who was never in possession of the ship, his title must be proved by the production of the bill of sale, and by proving the ownership of the vendor, and a compliance with the requisites of the reThe regis- gistry acts. The register is of itself no evidence to prove a

transfer by sale; for the objects of the registry acts were alien from those of evidence; but though a certificate of registry is not even prima facie evidence of a transfer by saled, yet in many instances it will negative a transfer by sale, and operate as conclusive evidence of want of title. As where the interest was alleged to be in four, but two only were mentioned as owners in the register; it was held that the action could not be maintained, for want of proof of interest in the four, though they were all partners in trade, and had paid jointly for the ship. An averment that A. was sole owner of the ship to a certain day, is not disproved by evidence that he executed a bill of sale of part before that day, and that on that day the requisites of the registry acts were complied with. Where the ship was purchased in a foreign country, a copy of the bill of sale issued by a public officer authorized to authenticate the original, and to make copies, was held to be evidence of that fact 8. Interest in goods may be proved by evidence of possession by the insured, and of the exercise of acts of ownership; the production of the bill of lading, and the evidence of

the captain of the ship that he had the goods mentioned in it on board, is sufficient a.

A bill of lading signed by a deceased master of a vessel, for goods to be delivered to a consignee or his assigns, he paying freight, is admissible as evidence of the consignee having an insurable interest in the goods. So the production of a bill of parcels from the seller abroad, with the receipt to it, and proof of his handwriting, has been held sufficient". So the bill of

lading is evidence of the property in the goods, on proof of the master's signature, though he be alive; but it is not evidence of the shipment.

Bill of lading.

of the

goods.

Where the policy is on freight, the insured must prove that, Shipment but for the intervention of the perils of the sea insured against, some freight would have been earned, either by shewing that some goods were put on board, or that there was an inception of the right to freight under the charterparty, or some other express or implied contracte. The loss accruing by reason of the insured being deprived of the means of carrying his own goods in his own ship, is recoverable under such a policy.

the

voyage.

Where the vessel is lost, there must be evidence of her sail- Sailing on ing on the voyage stated in the policy ; proof of a particular destination by a charterparty, or of her clearing out for a particular port, or of a license for the port mentioned in the policy, will be prima facie evidence of her sailing on the voyage insured after she dropped from her moorings b.

66

a M'Andrew v. Bell, 1 Esp. 473. Haddow v. Parry, 3 Taunt. 303. But if the master guards his acknowledgement by saying contents unknown," so that he does not charge himself with the receipt of any goods in particular, the bill of lading alone is not evidence, either of the quantity of the goods, or of property in the consignee. Id. By 6 Geo. IV. c. 94. s. 2, any person entrusted with, and in possession of, any bill of lading, dock warrant, &c., or warrant or order for the delivery of goods, shall be deemed and taken to be the true owner of the goods, so as to give

66

Compliance

with war

ranties.

Proof of the loss.

Loss by capture.

To prove a warranty, that a ship insured was of a particular nation, it is prima facie evidence, that she carried the flag of that nation at times when she was free from all danger of capture, and that the captain addressed himself to the consul of that nation in a foreign porta.

If the warranty be to sail with convoy, compliance will be presumed, if a convoy was required by law b. The log-book, or the official letter of the commander of the convoy, is evidence of the ship sailing with a convoy. When it is necessary to prove a license, the original document must be produced, if in existence, but if lost, secondary evidence of it will be admitted, which may be an examined copy, or if there be none, parol testimony d.

The proof of the loss must correspond with the averments in the declaration. We have seen that in case of a ship's not having been heard of for a considerable time, a loss may be presumed. Where a loss is to be inferred from the want of intelligence, the plaintiff must distinctly prove that, when the vessel left the port of outfit, she was bound upon the voyage insured. Where the plaintiff's agent showed to the defendant, an underwriter, the captain's protest, containing an account of the loss of the ship insured, demanding payment; held, that this did not entitle the defendant to read the protest in evidence in an action on the policy 8.

In case of a capture, the entry in Lloyd's books, stating the capture, is evidence of the fact, as against a subscriber to Lloyd's. We have already seen that the condemnation of the property insured as enemy's property by the sentence of a court of admiralty, is conclusive evidence against the warranty of neutrality, with respect to the amount of the loss. In open policies the insured must prove the amount of his loss, but in

valued policies, if the loss be a total one, he need only prove that he had some interest; if partial only, he must shew the amount of his loss, as in an open policy a. Payment into court of a per centage on a valued policy, does not admit a total loss b.

loss.

The certificate of an agent for Lloyd's at a foreign port, as- Amount of certaining an average loss on a cargo damaged by sea water, is not of itself admissible evidence as to the amount of the loss, in an action by the assured against the underwriters in this country c.

The evidence required on behalf of the defendant, must depend on the nature of the defence.

be a wit

ness.

An underwriter is a competent witness for another under- Who may writer who has subscribed the same policy; unless he has entered into the consolidation rule, or has paid the amount of the loss on condition of being repaid, if the policy turned out to be invalide. An owner of a ship is not a good wit- The owner. ness (in an action on an insurance of goods put on board that ship) to prove her seaworthy until released by the plaintiff'. In an action on a policy of insurance on goods from London to Emden, where the ship was lost by putting into the Texel; the captain, as part owner of the ship, was admitted as a competent witness to prove that the ship originally sailed on the voyage insured by the direction of the owners of the goods, though not to prove that the deviation was justified by necessity 5. But the captain of a ship is not an admissible witness to The c disprove barratry, by showing that the barratrous acts were done by consent and direction of the owners, without a release from the underwriters h. Depositions taken in an action on a policy of insurance of the captain, who is also part owner, where the loss is imputed to his misconduct, are not evidence 1. Nor is the captain's protest evidence of the fact therein stated,

e captain.

though it may be read for the purpose of contradicting his testimony a.

One who is jointly interested in the property, is incompetent to give evidence b. But in an action on a policy for goods, the supercargo, who was to have had a share in the profits of the adventure, is a good witness where the goods were lost before they were sold, and the broker who effected the policy, and has a lien upon it for his premium, is a competent witness to prove all matters connected with the policy d. Upon a question concerning the seaworthiness of a ship, after the evidence of persons who have been examined as to her condition, experienced shipwrights who never saw her may be called to say whether, upon the facts sworn to, she was in their opinion seaworthy or not.

Gaming or wagering policies are illegal.

SECTION XXV.

INSURANCE UPON LIVES.

AN insurance upon life is a contract by which the insurer, in consideration of a certain premium, agrees to pay a stipulated sum, or an annuity upon the death of the party whose life is insured, whenever that event shall take place, if the insurance be for the whole life; or in case it should happen within a certain fixed period, if the insurance be for a limited time. This species of insurance is often resorted to as a means of making a provision for a family, after the death of the party whose life is insured; and also as a security for the repayment of a loan; a life policy is assignable and may be effected either by the party himself or by a third person; but to prevent life insurance from being converted into a medium of mischievous speculation, it was enacted by 14 Geo. III. c. 48. s. 1, "that no insurance should be made by any person, body politic or corporate, on