malt, and other kinds of grain,a but not rice; salt does not include saltpetre. Where there has been a stranding, the insured is entitled to recover for average losses, though the injury to the cargo does not result from the stranding.d 8.-Stamp.] The policy must be duly stamped at the time If the poliwhen it is effected, otherwise it is an absolute nullity, and can- cy be not not be made available in any court of justice, for it cannot be duly stamped, legally stamped afterwards. By 3 & 4 W. IV, c. 23, s. 1, the it is void. duties granted by 55 Geo. III, c. 184, on sea insurances in England, and by 56 Geo. III, c. 56, in Ireland, are repealed, and the following scale of duties is substituted: Policies upon ships, goods, merchandise, or any other interest, which may be legally insured for any voyage, other than a voyage from any port of the United Kingdom of Great Britain and Ireland, the islands of Guernsey, Jersey, Alderney, or the Isle of Man, to any other port or place in the said kingdom or islands. Where the premium bona fide paid or contracted for, shall not exceed the rate of 15s. per cent. on the sum insured. If the whole sum insured shall not exceed 100/. . £ s. d. . 0 1 3 013 And if the whole sum insured shall exceed 100%., Where the premium shall exceed 30s. for every 0 2 6 0 5 0 But if the separate interests of two or more distinct persons shall be insured by one policy, then the said duty of 1s. 3d., or 2s. 6d., or 5s., as the case may require, shall be charged thereon, in respect of each and every fractional part of 100%, as well as in respect of every full sum of 100/. thereby insured upon any separate interest.f *1148 Mason v. Skurry, Park. 179. Moody v. Surridge, Id. Scott v. Bourdillion, 2 N. R. 213. d Burnet v. Kensington, 7 T. R. 210. Harman v. Vaux, 3 Camp. 429. average," and "stranding," are considered under distinct heads. 35 Geo. III, c. 63, s. 14. Roderic v. Hovil, 3 Camp. 103. "General See post, 1173-6. Rapp v. Allnutt, Id. If in such case the stamp be not sufficient to cover all the fractional parts, the policy And for every policy of insurance upon any ship, freight, or any other interest which may be lawfully insured, for any certain period of time; the following rates for every 100l., and also for any fractional part of 100l. whereof the same shall consist. £ s. d. Where any such insurance shall be made for any 60 0 5 0 By sec. 4. of this act, all powers and provisions of former acts relating to duties on sea insurances, and not hereby expressly provided for, are preserved and kept in force. By 35 Geo. III, c. 63, s. 11, the premium, or consideration, the risk or adventure insured against, the names of the under*1149 *writers, and the sums insured, shall be specified in the policy, What al or it will be void. In general any alteration made in an instrument after it has terations been executed, will require a new stamp; but the 35 Geo. III, in a policy c. 63, s. 13, provides, "that the act shall not extend to prohibit need not the making any alteration which may lawfully be made in the be stamped. terms or conditions of any policy of insurance, duly stamped, after the same shall have been underwritten, or to require any additional stamp duty by reason of such alteration, so that such alteration be made before notice of the determination of the risk originally insured, &c., and so that the thing insured shall remain the property of the same persons; and so that such alteration shall not prolong the term insured beyond the period allowed by this act; and so that no additional or further sum shall be insured by means of such alteration."'a Decisions tute. It has been held, under this provision, that where goods and under the specie to a certain amount were insured by a policy on ship or above sta- ships which should sail on the voyage insured between the 1st of October 1799 and the 1st of June 1800, a memorandum written on the policy on the 11th of June, extending the time of sailing to the 1st of August, 1800, did not require a new stamp. So it has been held that a policy containing a warranty that the ship shall sail on or before a given day, may be altered, pending the risk, by a memorandum whereby the underwriters, in consideration of a further premium, agree to cancel the warranty, and to make a return of premium if the ship sail with convoy. So where, in a policy on goods at and from S. to R., and the ship being driven into W. and detained, and the assured afterwards wrote to their agents in L. "that the captain had been ordered to proceed to C.; as they were not certain whether the enemy might be at R. or not, and that the will be void; though the stamp be sufficient to cover the aggregate sum insured. Rapp v. Allnutt, 15 East, 601. 35 Geo. III, c. 63, s. 13. Kensington v. Inglis, (in Error,) 8 East, 273. Ridsdale v. Shedden, 4 Camp. 107. passage to C. was nearly the same, but rather the shortest and safest, and they desired the agents to arrange the matter with the underwriters," which letter the agents receiving on 12th July, applied to the underwriters for their consent to alter the *1150 policy, by adding the words" S. or M." after" R." which consent was obtained, and the ship and goods were afterwards lost in the voyage to C.; held, that this alteration did not require a new stamp. So where a vessel having sailed, put back to the Downs, and then sailed again, and labored and strained much from being overloaded, and then put back a second time; and upon an application to the underwriters for liberty for the ship to go into port to discharge part of the cargo, it was only communicated to them that the ship was too deep in the water; held, that the memorandum giving such liberty did not require a new stamp.b A warranty may be waived by a memorandum on the policy, without a new stamp. As where a policy was effected upon hemp marked R. and by a subsequent memorandum the underwriters agreed to protect the hemp, though the mark was withdrawn; held, not to require a new stamp. So where a policy was effected on a ship on a voyage at and from Liverpool to Quebec; the ship being detained beyond the intended time of sailing, the following memorandum was indorsed on the policy, "The Hebe being unavoidably detained beyond the intended time of sailing, the voyage is changed, and the vessel proceeds from Liverpool to New Brunswick, and from thence to London, and in consideration of one guinea per cent., the underwriters agree to continue the risk until the vessel shall be arrived back in London, &c.;" held, that the memorandum was within the 13th sec. of the act, and did not require a new stamp. If by mistake a policy be effected in terms not conformable to the real intention of the parties, the mistake may be corrected without a new stamp. d But the statute does not sanction an alteration of the subject matter of insurance. The words, "the thing insured shall remain the property," &c., apply to one identical and continued subject matter all along remaining the property of the same proprietor. *Therefore, where the original policy was "on ship and out- *1151 fit" at and from London to the South Seas, during the ship's stay and fishing there, and at and thence to Great Britain, &c.; and after the ship had sailed on the voyage insured, by consent of the underwriters the policy was altered, and declared to be on the ship and goods, instead of ship and outfit. It was held, that as the outfit for such a voyage as was described in the policy, differed materially from what was comprehended under Ramstrom v. Bell, 5 M. & S. 267. Weir v. Aberdeen, 2 B. & A. 320. Hubbard v. Jackson, 4 Taunt. 169. 4 Brockelbank v. Sugrue, 1 B. & Ad. 81. (20 Eng. C. L. 351.) 1 M. & Rob. 102. • Robinson v. Touray, 1 M. & S. 217. 3 Camp. 160. Sawtel v. London, 5 Taunt. 359. (1 Eng. C. L. 133.) the term goods, the policy in its altered state required an additional stamp within the meaning of the act." A material Independently of the stamp laws, at common law any matealteration rial alteration made in the instrument by one of the parties, will avoid without the consent of the other, rendered it void and incapable the policy. of being enforced in any court of justice." Thus, where a policy from Calmar to Portsmouth, was altered with the consent of some of the underwriters, by inserting the words, "or Weymouth" after Portsmouth; held, that the policy was void against an underwriter who was ignorant of the alteration when it was made, although afterwards, on being informed of it, he said he would not take advantage of it. So where a policy was executed in the printed form, without any specific subject of insurance being inserted in writing, and the subject matter was afterwards added in writing, and the addition signed by some of the underwriters only; it was held, that the assured could not recover against those underwriters who did not so sign, on the contract as it stood altered by the insertion. But it has been held that a policy "at and from A. and B," was not vitiated by inserting, without the consent of the underwriters, the words "both or either;" for the alteration was immaterial, it did not affect the legal operation of the instru ment.e *1152 Valued policy. *SECTION VI. VALUED AND OPEN POLICIES. A VALUED policy is where the subject insured is estimated at a certain sum, which is inserted in the policy, as liquidated damages; to save the necessity of proving the value in case of a total loss. The effect of a valuation is to fix the amount of interest in the same manner as if the insurer were to admit it at the trial. (1) Hill v. Patten, 8 East, 373. It was afterwards held that the assured could not recover upon the policy in its original state, an assurance on "ship and outfit," by reason of the alteration apparent on the face of the instrument having been made by the parties interested. French v. Patton, 9 East, 351. See ante, 656. Forshaw v. Chabert, 3 B. & B. 158. (7 Eng. C. L. 389.) Fairlie v. Christie, 7 Taunt. 416. (2 Eng. C. L. 159.) French v. Patton, 9 East, 351. Campbell v. Christie, 2 Stark. 64. (3 Eng. C. L. 246.) с & Langhorn v. Cologan, 4 Taunt. 330. c Clapham v. Cologan, 3 Camp. 382. Sanderson v. Symons, 4 Moore, 42. A valued policy of insurance is not to be considered as a wagering policy, Lewis v. Rucker, 2 Burr. 1167, unless it dispenses with all proof of interest; as where a policy stipulated that the goods insured were and should be valued at five tierces of (1) (Patapsco Ins. Co. v. Biscoe, 7 Gill & Johns. 233.) An open policy is where the amount of the interest insured Open is not fixed in the policy, but is left to be ascertained by the policy. insured, in case of a total loss. When a power is given to the insured of declaring the value of the subject matter, after the policy is effected, the declaration of interest, to be available, must be communicated to the underwriters, or some one on their behalf, before intelligence is received of the loss; but the declaration of interest is not a condition precedent, and if none is made, the policy is then open instead of being valued, and upon proof of interest at the trial, the assured will be entitled to recover.a In case of a valued policy, the general rule is, that if, by one of the peri's insured against, there be a total loss of the subject matter of insurance, the insured is entitled to recover the whole sum at which the cargo was valued; but where a partial loss only is sustained, as if part only of the cargo be on board at the time of the loss, the valuation must be opened, and the insured can only recover a proportionate share. If goods are fraudulently overvalued in a policy of insurance, with intent to cheat the underwriters, the contract is entirely vitiated, and the as- *1153 sured cannot recover even for the value actually on board. (1) SECTION VII. CONSTRUCTION OF POLICIES. In the construction of covenants the following observations of a distinguished judge are worthy of particular attention; they contain every thing that can be usefully said upon the subject. “The same rule of construction, which applies to all other instruments, applies equally to a policy of assurance, viz., that it is to be construed according to its sense and meaning, as collected in the first place from the terms used in it, which terms are to be understood in their plain, ordinary, and popular sense, unless they have generally, in respect to the subject matter, as by the known usage of trade or the like, acquired a coffee valued at 271. per tierce, say 1351., that the policy should be deemed a sufficient proof of interest; held, that it was a wagering policy, and void under 19 Geo. II, c. 37, ante, 1133. Murphy r. Bell, 4 Bing. 567. (15 Eng. C. L. 74.) 1 M. & P. 493. ⚫ Harman v. Kingston, 3 Camp. 150. Forbes v. Aspinall, 13 East, 323. Forbes v. Cowie, 1 Camp. 520. Rickman v. Carstairs, 5 B. & Ad. 651. (27 Eng. C. L. 147.) 2 N. & M. 562. But see Montgomery r. Eggington, 3 T. R. 362. Haigh . De La Cour, 3 Camp. 319. And see Amery v. Rogers, 1 Esp. 207. See ante, 613. (1) (See Clark v. The Ocean Ins. Co. 16 Pick. 289.) |