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Description of Articles insured, &c.-Loss.

413

Q. B. 102. And, a carrier, who so insures, may recover the whole value of goods lost by fire, although the owner of the goods may be disabled from recovering from the carrier by reason of the value not being declared under the Carriers Act. L. & N. W. Ry. Co. v. Glyn, 1 E. & E. 652; 28 L. J., Q. B. 188. See also Ebsworth v. Alliance Marine Insur. Co., cited ante, p. 382. But, it is otherwise, where the further words, "for which they" (the assured) are responsible," are added. N. British Insur. Co. v. Moffatt, L. R., 7 C. P. 25. As to the claim of the general owner to the insurance money, when received by the assured, see Martineau v. Kitching, L. R., 7 Q. B. 436, and Ebsworth v. Alliance Marine Insur. Co., supra. Goods delivered by A. to B., who is to return to A. an equivalent quantity of similar goods, but not necessarily the identical goods delivered to B., are to be insured as the goods of B., and not as the goods held by B. in trust; for the transaction amounts to a sale of the goods to B. S. Australian Insur. Co. v. Randell, L. R., 3 P. C. 101.

Description of the articles insured; alteration in premises, &c.] The property intended to be insured must be described; but, substantial accuracy is sufficient. See Forbes' claim, L. R., 19 Eq. 485. Thus, where the policy required the house or other building, in which the goods are, to be mentioned, the goods of a lodger may be called "goods in his dwellinghouse." Friedlander v. London Assur. Co., 1 M. & Rob. 171. The locality of the subject of insurance is material. Pearson v. Commercial Union Assur. Co., 1 Ap. Ca. 498, D. P., ante, p. 393. Where the premises are described as being where "no fires are kept, or hazardous goods deposited," this means where no fires are habitually kept; and the casual use of fire to repair the premises does not come within the condition. Dobson v. Sotheby, M. & M. 90. So, where the condition was against any alteration of the trade without notice, a single instance of drying bark in a kiln, used and insured, as a corn kiln will not avoid the policy. Shaw v. Robberds, 6 Ad. & E. 75. When no steam engine, stove, or other description of fire heat was to be introduced, without notice to the insurers, the introduction of a stove and use of it on one occasion, as an experiment, without notice, prevents the insured recovering. Glen v. Lewis, 8 Exch. 607; 22 L. J., Ex. 228. But, where there is no condition relating to alterations in the premises after the policy, a subsequent change, as by setting up a more hazardous trade in them, if without fraud, will not avoid the policy. Pim v. Reid, 6 M. & G. 1. Policies usually provide for notice of any such change; and where the alteration is one which makes the subject-matter insured no longer substantially correspond with the property as particularly described in the policy, and varies the risk, it will avoid the assurance; for the description in such cases is equivalent to a warranty. Sillem v. Thornton, 3 E. & B. 868; 23 L. J., Q. B. 362. In this last case, the house was enlarged so as no longer to agree with a description of it, annexed to the policy, and referred to in it so as to form a part of it. But, such a constructive warranty or condition is restrained by an express condition, requiring notice of any alteration increasing the risk and payment of a higher premium. Stokes v. Cox, 1 H. & N. 533; 26 L. J., Ex. 113, Ex. Ch.

If there be a condition in the policy that no more than 20 pounds of gunpowder be on the premises insured, the policy is avoided if the condition be broken, although the breach of the condition have not occasioned the loss. Beacon Life Assur. Co. v. Gibb, 1 Moo. P. C., N. S. 79.

Loss.] A fire policy is a contract of indemnity, and the assured can only recover the actual loss or damage sustained by him according to the real quantity and value of the goods at the time of the fire. Chapman v. Pole,

22 L. T., N. S. 306, Cockburn, C.J.; and, in respect of the interest in the goods covered by the insurance; Castellain v. Preston, 11 Q. B. D. 397, et seq., per Bowen, L.J. A valued policy is considered an open one if the loss be not total, and damage and expenses caused by removing articles insured are also covered by the policy. 3 Kent, Com. 375, and note. By 28 & 29 Vict. c. 90, s. 12, "any damage occasioned by the" metropolitan "fire brigade" constituted by that act "in the due execution of their duties, shall be deemed to be damage by fire within the meaning of any policy of insurance against fire."

A damage sustained by atmospheric concussion, caused by an explosion of gunpowder at a distance, is not a damage insured against in a policy against loss occasioned by fire. Everitt v. London Assur. Co., 19 C. B., N. S. 126; 34 L. J., C. P. 299. See Marsden v. City and County Assur. Co., infra. Where a fire policy contained an exception of liability for loss or damage by explosion, except for such loss or damages as should arise from explosion by gas, and an inflammable vapour caught fire, exploded, and caused a further fire, it was held that gas meant only ordinary coal gas; and that the exception included not only the effects of the explosion, but also the further fire caused thereby. Stanley v. Western Insur. Co., L. R., 3 Ex. 71.

The policy covers a loss by fire owing to the negligence of the assured himself, if there be no fraud. Shaw v. Robberds, 6 Ad. & E. 75. Wilful misrepresentations of the value of the property destroyed will, under the usual clause against fraudulent claims, defeat and vitiate the whole claim. Britton v. R. Insur. Co., 4 F. & F. 905; see also Chapman v. Pole, ante, p. 413.

A condition "that if, at the time of any loss happening to any property hereby insured, there be any other subsisting insurances, whether effected by the assured or any other person, covering the same property," the insurer shall not be liable to pay more than his rateable proportion of such loss, applies only where the same property is the subject-matter of insurance, and the interests are the same. N. British and Mercantile Insur. Co. v. L. Liverpool & Globe Insur. Co., 5 Ch. D. 569, C. A. See further as to double insurance. Australian Agricultural Co. v. Saunders, L. R., 10 C. P. 668, Ex. Ch.

Where A. is insured by B., and A. can also recover the loss from C., B. may, when he has made good A.'s loss, recover in A.'s name the amount over from C. Mason v. Sainsbury, 3 Doug. 61; N. British & Mercantilè Insur. Co. v. L. Liverpool, & Globe Insur. Co., supra. And, so if after B. has paid A. the amount of his loss, C., under a legal obligation, also makes it good, B. can recover the amount from A., whether A.'s right of action against C. is founded on tort. Darrell v. Tibbitts, 5 Q. B. D., 560 C. A.; or, arises out of contract. Castellain v. Preston, 11 Q. B. D., 380 C. A. See also cases cited ante, p. 402.

Insurance against Accidents to Chattels.

By a policy of insurance, plate glass in the plaintiff's shop front was insured against "loss or damage originating from any cause whatsoever, except fire," &c.; a fire broke out on premises adjoining the plaintiff's, but, did not approach his shop front; a mob attracted by the fire tore down the plaintiff's shop shutters, and broke the plate glass for the purpose of plunder; it was held that the proximate cause of the damage was the lawless act of the mob, and that it did not fall within the exception of the policy. Marsden v. City and County Assur. Co., L. R., 1 C. P. 232. As to stamp duties, vide ante, p. 247.

Action on Contract of Affreightment.

415

ACTION ON CONTRACT OF AFFREIGHTMENT.

This action lies by or against a shipowner, whether the ship be general or chartered. The contract need not be under seal. In the case of a general ship, the bill of lading, or in the case of a chartered ship, the charter-party, is the proof of the contract. As the pleadings and proofs are substantially the same, whether the contract be or be not under seal, the following cases are to be taken as applicable to actions on contracts between shipper and shipowner, whatever the technical form of action may be, unless otherwise specified.

As to the admissibility of oral evidence to explain charter-parties, bills of lading, or other like contracts, see ante, pp. 21, et seq.

A charter-party, or memorandum in the nature of one, commonly contains clauses on the part of the shipowner, for seaworthiness, the reception and delivery of the cargo, and performance of the voyage, with an exception of certain perils. On the part of the charterer or freighter, the clauses are to load in a given time, and to pay freight and demurrage. As to stamp duties thereon, vide ante, p. 233.

As to bills of lading, vide infra.

The captain or master of a ship is an agent of the owners with larger powers than an ordinary agent. As between him and third persons, he is personally liable on contracts, made in the course of his ordinary employinent, in his own name, or as agent of the owner, and he is able to sue on contracts so made. So, where like contracts are made by him, whether he sign expressly as agent or not, the owner may sue or be sued on them. Hence, he may sign a charter-party or bill of lading in his own name, and thereby bind his owners. 3 Kent, Com. 161-164; Story on Agency, cap. 6, ss. 116-123. And, he may sue in his own name for freight. Shields v. Davis, 6 Taunt. 65. The law of the country to which the ship belongs is prima facie that which binds the parties to a contract of affreightment; Lloyd v. Guibert, L. R., 1 Q. B. 115, Ex. Ch. ; The Gaetans & Maria, 7 P. D. 137 C. A., but this rule will be modified where the parties show a different intention. Chartered Mercantile Bank of India v. Netherlands India Steam Navigation Co., 10 Q. B. D. 521, 529, 540. See further as to the master's authority to bind his owners, post, p. 525.

Bill of lading] A bill of lading contains a receipt for and description of the goods received on board, the names of the shipper and consignee, the place of delivery (certain perils excepted) and the freight; and it is signed (in three parts) by the master, as agent of the shipowners. The words "or assigns" are usually added to the name of the consignee, and it is questionable whether it be transferable by indorsement, unless the words be subjoined; see Henderson v. Comptoir d'Escompte de Paris, L. R., 5 P. C. 253 ; except, perhaps, in the case of special custom in certain foreign trades; see Renteria v. Ruding, M. & M. 511. But, the omission of the words "or assigns" does not of itself give notice that the person in whose name the bill is made out is entitled to deal with the goods absolutely. Henderson v. Comptoir d'Escompte de Paris, supra.

Although the indorsement of a bill of lading transferred the property in the goods, at common law, it conveyed no right of action to or against the indorsee in his own name as upon the original contract. Thompson v. Dominy, 14 M. & W. 403; Howard v. Shepherd, 9 C. B. 297; 19 L. J., C. P. 249. And, the receipt of the goods by the indorsee was only evidence for a jury of a new contract to pay freight in consideration of the delivery, on

which he might be sued. Kemp v. Clark, 12 Q. B. 647. But, by the Bills of Lading Act (18 & 19 Vict. c. 111), it is enacted (sect. 1), that "every consignee of goods named in a bill of lading, and every indorsee of a bill of lading, to whom the property in the goods therein mentioned shall pass upon or by reason of such consignment or indorsement, shall have transferred to, and vested in him, all rights of suit, and be subject to the same liabilities in respect of such goods, as if the contract contained in the bill of lading had been made with himself." But (sect. 2) "nothing herein contained shall prejudice or affect any right of stoppage in transitu, or any right to claim freight against the original shipper or owner, or any liability of the consignee or indorsee by reason or in consequence of his being such consignee or indorsee, or of his receipt of the goods by reason or in consequence of such consignment or indorsement."

The consignee or indorsee of a bill of lading may deprive the unpaid vendor of his right to stop the goods in transitu by indorsing it for valuable consideration, although the goods are not paid for, provided the indorsee for value has acted bona fide and without notice. The Marie Joseph, L. R., 1 P. C. 219, 227; The Argentina, L. R., 1 Adm. 370. A past debt is sufficient consideration. Leask v. Scott, 2 Q. B. D. 376, C. A. ; overruling Rodger v. Comptoir d'Escompte de Paris, L. R., 2 P. C. 393. See further, post, Action for conversion of goods-Defence-Stoppage in transitu-how defeated. The indorsee has transferred to him, the same rights and liabilities in respect of the goods, as if the contract in the bill of lading had been made with him. The Helene, B. & L. 415. Hence, actions now lie on the original contract by or against the indorsee of the bill of lading, and the shipowner or master may sue him for freight although he received the goods under circumstances which negative any intention or undertaking to pay. It seems that a person, taking a bill of lading by indorsement after a breach, by a wrongful delivery of the goods to a stranger, can maintain an action by virtue of sect. 1. Short v. Simpson, L. R., 1 C. P. 248, and at 252, 255, per Willes, J. The first indorsee of one part of a bill of lading, drawn in a set, "one of which being accomplished the others to be void," gets the property in the goods, though he take no steps to enforce his rights. Meyerstein v. Barber, L. R., 4 H. L. 317. But, the master is justified in delivering the goods to the consignee, to whom they are by such a bill of lading made deliverable, on production of one part of the bill, although there has been a prior indorsement for value of another part, provided the master had no notice thereof, and the delivery was bona fide. Glyn v. E. & W. India Dock Co., 7 Ap. Ca., 591 D. P. See further as to bills of lading in sets, Sanders v. Maclean, 11 Q. B. D., 327 C. A. The act does not seem to render any bill of lading negotiable, which would not have been so before the act. See Henderson v. Comptoir d'Escompte de Paris, ante, p. 415. The shipper A. of goods does not, by simply indorsing the bill of lading to B., and delivering it to him by way of security for an advance," pass the property" in the goods to B., so as to make B. liable to the shipowner for freight under sect. 1. Burdick v Sewell, 10 Q. B. D.

363.

See further sect. 3 (cited post, p. 428), as to the effect of a bill of lading.

In the ordinary course of business, the consignor of goods sends them to this country, accompanied by bills of lading and bills of exchange, which are to be accepted by the consignee of the goods as the consideration for the consignment; then, where the consignor sends those documents direct to the consignee, it is clear that he intended the consignee should have at once the disposal of the property and possession of the goods consigned, leaving it to him to return the bills of exchange accepted, not as a condition precedent to the property vesting, but simply as a matter of contract. Shepherd v. Har

Shipowner against Charterer, &c.—Bill of Lading.

417 ́rison, L. R., 4 Q. B. 196, 203. But, where the consignor sends the bills of lading to an agent in this country to be by him handed over to the consignee, and accompanies them with bills of exchange, to be accepted by the consignee, that indicates a different intention, viz., that the handing over the bills of lading, and the acceptance of the bills of exchange should be concurrent parts, of one and the same transaction, and till the consignee has accepted the bills of exchange, the property in the goods does not pass to him, although he has obtained possession of the bills of lading, making the goods deliverable to the consignor, "order or assigns," and indorsed by the consignor in blank. S. C., Id.; L. R., 4 Q. B. 493, Ex. Ch., and L. R., 5 H. L. 116. See also Ex pte. Banner, 2 Ch. D. 278, C. A.; Mirabita v. Imperial Ottoman Bank, 3 Ex. D. 164, C. A. This intention is not inconsistent with a statement in the invoice, that the goods are shipped on account, and at the risk, of the consignee. Shepherd v. Harrison, L. R., 5 H. L. 116. See also Moakes v. Nicholson, 19 C. B., N. S. 290; 34 L. J., C. P. 273; and Gabarron v. Kreeft, Kreeft v. Thompson, L. R., 10 Ex. 274, as to effect of shipping goods, under bill of lading; also Anderson v. Morice, 1 Ap. Ca. 713, D. P.; Ogg v. Shuter 1 C. P. D. 47, C. A. As to property in goods, passing when the bill of lading is posted, see Banco de Lima v. Anglo-Peruvian Bank, 8 Ch. D. 160.

It is a breach of contract if the master sail away with the cargo on board without signing bills of lading, but it does not amount to a conversion of the cargo, unless the circumstances show an intention by him, to deprive the shipper of his cargo. Jones v. Hough, 5 Ex. D. 115, C. A.

The right of suing upon a contract under a bill of lading follows the legal title to the goods as against the indorser. The Freedom, L. R., 3 P. C. 594; see also The Figlia Maggiore, L. R., 2 Adm. 106. So, where the consignors indorsed, and delivered a bill of lading to A., who indorsed, and delivered it to the plaintiff for value; this, was held to be evidence of such an indorsement and delivery, as to pass the property in the goods to the plaintiff, within the meaning of sect. 1; Dracachi v. Anglo-Egyptian Navigation Co., L. R., 3 C. P. 190; and, if goods are shipped by the seller, to order, under circumstances which show that he intended to pass the property in the goods to the buyer, the mere fact of the seller having taken the bill of lading in his name, and its remaining unindorsed, will not prevent the property passing. Joyce v. Swann, 17 C. B., N. S. 84. See also Mirabita v. Imperial Ottoman Bank, supra.

An indorsee of a bill of lading, who has indorsed, it over before the arrival of the vessel and delivery of the cargo, does not, under this statute, remain liable for the freight; Smurthwaite v. Wilkins, 11 C. B., N. S., 842; 31 L. J., C. P. 214; and where the consignee of goods, before the arrival of the ship, indorsed over the bill of lading to wharfingers thus: "deliver to W. or order, looking to them for all freight, &c., without recourse to us," and the shipowners accepted the indorsement, and delivered the goods to W.; the shipowners could not sue the consignee for freight. Lewis v. M'Kee, L. R., 2 Ex. 37. But, such acceptance of the indorsement by the shipowners, is not proved by showing that it was on the bill when it was presented to the captain, without proving that the captain, in fact, assented to it. S. C., L. R., 4 Ex. 58; Ex. Ch. The consignee, named in the bill of lading is liable thereon, unless he has indorsed it over, even though he has sold the cargo comprised therein. Fowler v. Knoop, 4 Q. B. D. 299, C. A.

Where goods are loaded, and the mate's receipt then given, and afterwards exchanged for the bill of lading, in the usual manner, the latter takes effect from the loading. The Duero, L. R., 2 Adm. 393. A bill of lading remains in force, until there has been a delivery of goods thereunder, to a person

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