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Rule of Construction.-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 peculiar sense distinct from the popular sense of the same words, or unless the context evidently points out that they must, in the particular instance, and in order to effectuate the immediate intention of the parties to that contract, he understood in some other special and peculiar sense. The only difference between policies of assurance and other instruments in this respect, is, that the greater part of the printed language of them being invariable and uniform, has acquired, from use and practice, a known and definite meaning, and that the words superadded in writing, subject indeed always to be governed in point of construction by the language and terms with which they are accompanied, are entitled nevertheless, if there should be any reasonable doubt upon the sense and meaning of the whole, to have a greater effect attributed to them than to the printed words, inasmuch as the written words are the immediate language and terms selected by the parties for the expression of their meaning, and the printed words are a general formula adapted equally to their case, and that of all other contracting parties upon similar occasions and subjects.

1 Lord Ellenborough C. J. delivering the judgment of the court in Robertson v. French, 4 East, 135.

was holden, that as the outfit for such a voyage as was described in the policy differed materially from what was comprehended under the term goods, the policy in its altered state required an additional Hill v. Patstamp within the meaning of the preceding section. ten, 8 East, 373. cited in Bathe v. Taylor, B. R. E. 52 G. 3. It was holden afterwards, that the assured could not recover upon policy in its original state, as an assurance on “ship and outfit," by reason of the alteration apparent on the face of the instrument, such alteration having been made by the parties interested. French v. Patten, 9 East, 351.

the

III. What Persons may be insured-Who may be Insurers-What may be insured.

What Persons may be insured.

In this country all persons, whether British subjects or aliens, may, in general, be insured. But an action cannot be maintained on a policy at the suit or on the behalf (14) of an alien enemy during war, although the property insured be of British manufacture, and exported from this country (15). A neutral, however, although domiciled and carrying on trade in an enemy's country, in partnership with an alien enemy, may insure his interest in the joint property, and on coming into this country may sue for the recovery of a loss arising from one of the perils insured against".

Who may be Insurers.

At the common law, any person in his individual and sem Brandon v. Nesbitt, 6 T. R. 23. Bris- n Rotch v. Edie, 6 T. R. 413. tow v. Towers, 6 T. R. 35.

(14) But where a ship belonging to an alien enemy is protected by the king's licence, an insurance may be effected on such ship by a British subject, as trustee on the behalf of the ship-owner, and an action on the policy may be maintained at the suit of the trustee, even in time of war, because the public policy of the country is not contravened by sustaining and giving effect to such trust; and although the king's licence cannot, in point of law, have the effect of removing the personal disability of the ship-owner, (being an alien enemy) in respect of suit, so as to enable him to sue in his own name, yet it purges the trust in respect to him of all the injurious qualities in regard to the public interest. Kensington v. Inglis, 8 East, 273.

(15) An English subject who lives and carries on trade under the protection and for the benefit of an hostile state, and who is so far a merchant settled in the state that his goods would be liable to confiscation in a court of prize, is not to be considered as entitled to sue as an English subject in an English court of justice. Residing under the allegiance and protection of an hostile state, he may be considered, to all civil purposes, as much an alien enemy as if he were born there, But if he reside in a neutral country, he is entitled to all the privileges of a neutral country. See M'Connell v. Hector, 3 Bos. & Pul. 113.

parate capacity, or any number of persons forming a society or partnership, might have been insurers; but it having been found by experience that particular underwriters, after having received large premiums for the insurance of ships, &c. at sea, became bankrupts, or otherwise failed in answering or complying with the terms of their policies of assurance, to the ruin of many merchants, and to the discouragement of adventurers at sea, and to the great diminution of the trade and public revenues of the kingdom, it was deemed advisable to establish two distinct corporations, with competent funds for assurance of ships, goods, or merchandizes at sea, or going to sea, on the supposition that merchants would think it much safer to depend on the assurances of either of these corporations, than on those of private or particular persons; at the same time leaving to the merchants their option to assure with private underwriters, if they should prefer it. To carry this design into effect, the stat. 6 G. 1. c. 18. (A. D. 1719,) authorized the king to grant charters to two distinct companies for assurance of ships, goods, and merchandizes at sea, or going to sea, and for lending money on bottomry.

In pursuance of the powers given by this statute, the Royal Exchange Assurance and the London Assurance Companies were established by charters, bearing date the 22d day of June, 1720.

By the 12th section of the before-mentioned statute, in order to prevent any competition between these two corporations, and any other public body, it is enacted, that "all corporations, societies, and partnerships (other than the said two corporations) shall be restrained from underwriting; and if any corporation, or any persons acting in a society or partnership, (other than the two corporations) shall presume to underwrite any policy upon ships, goods, or merchandize, at sea, or going to sea, every such policy shall be ipso facto void (16), and the sums underwritten shall be forfeited; and bonds or other securities, for money lent by way of bot

(16) It appears to have been the opinion of two eminent judges*, that where a single name appears on the policy, the insurer will not be allowed, if a loss happens, to defeat a bona fide insurance, by alleging to an innocent person, that there was a secret partnership between himself and another.

Eyre C. J. in Mitchell v. Cockburn, and Kenyon C. J. in Sullivan v. Greaves and Booth v. Hodgson.

tomry by any corporation or society, other than the two corporations, shall be ipso facto void, and such agreements adjudged to be usurious, and the offenders shall suffer as in cases of usury."

It is to be observed, that the object of the preceding section is merely to avoid marine insurances entered into by corporations or societies, and partnerships, other than the two privileged corporations: and in order to prevent any misconception on this point, it is expressly declared, at the close of the section, that any private persons may underwrite, &c. as fully and beneficially as before this statute, provided they " do not underwrite upon the account or risk of a corporation, or persons acting in a society or part, nership.'

For the cases which have been decided on the preceding section, viz. Booth v. Hodgson, Mitchell v. Cockburne, Aubert v. Maze, and Sullivan v. Greaves, see ante, p. 62, 3.

What may be insured.

The subjects of marine insurance are, ships, goods, merchandize, freight, bottomry, and respondentia interest; a special interest in goods, as the lien of a factor; money expended by the captain for the use of an East India ship; the captain's commission and privileges in an African trade ship'; (17) the profits expected to arise from a cargo, as from a cargo of molosses, or from a cargo employed in the trade on the coast of Africa. With respect to an insurance

o Montgomery v. Egginton, 3 T. R. 362.

p Park, 11.

q Gregory v. Christie, Park, 11.

r King v. Glover, 2 Bos. & Pul. N. R. 206.

8 Grant v. Parkinson, Park, 267.

t Barclay v. Cousins, 2 East, 544. See also Hodgson v. Glover, 6 East, 316.

(17) The policy of the law considers the insurance of seamen's wages, or of any thing to be received at the end of the voyage in lieu of wages, as illegal. The law of England, following the marine law, does not allow the mariners any wages, unless the ship earn freight. This law would be completely evaded, if the mariners could insure their wages; but there is not any such rule as to the captain. An insurance, however, on money lent to the captain, payable out of the freight, is illegal†.

See Webster v. De Tastet, 7 T. R. 157.

+ Wilson v. R. Ex. Ass. Com. 2 Camp. N. P. C. 626.

on freight, it is to be observed, 1st, that freight ought to be insured eo nomine as freight, and that it will not be covered by an insurance on goods; and, 2dly, unless an inchoate. right to the freight has commenced, the assured will not be entitled to recover.

In an action upon a policy of insurance upon ship and freight, it appeared that the ship had been destroyed by a tempest, before the goods which were ready to be shipped, were actually on board. Lee C. J. was of opinion, that the plaintiff was not entitled to recover for freight, as the goods not having been actually on board, the plaintiff's right to freight had not commenced. But where the right to freight has commenced, as if part of the goods are on board, and the rest ready to be shipped, the plaintiff will be entitled to recover on an insurance on freight. So, where a ship was chartered for a voyage from London to Teneriffe, where she was to take wine on board, and to carry it to the West Indies, and it was covenanted that the owner was to receive for the freight for the said voyage so much per pipe, and the vessel set sail, but was captured before she arrived at Teneriffe; it was holden, that, as in this case the inchoate right to freight commenced from the inception of the voyage, that is, the instant the ship sailed from London, the plaintiff was entitled to recover on a policy on freight. N. In this case the policy was a valued policy on freight" at and from London to Teneriffe, and at and from thence to the West Indies."

So where an insurance was made by ship-owners on freight of a certain ship" at and from Dominica," &c. to London, and it appeared that the ship had been chartered for a voyage from London to Dominica, and back to London, the charterers agreeing to pay a certain part of the freight which the ship should make outwards, and also to procure for the ship at Dominica a full cargo at the current freight for London: the ship, having arrived at Dominica and delivered her outward-bound cargo, was captured while she lay at Dominica, before any part of the homeward cargo, which was ready to be loaded, could be put on board. An endeavour was made to distinguish this case from the preceding case of Thompson v. Taylor, on the ground, that there the insurance was on a valued policy upon freight on a chartered ship at and from London to Teneriffe, and at and

u Baillie v. Modigliani, Park, 53.
* Tonge v. Watts, Str. 1251.
y Montgomery v. Eggington, 3 T. R.

z Thompson v. Taylor, 6 T. R. 478. a Horncastle v. Suart, 7 East, 400.

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