« ΠροηγούμενηΣυνέχεια »
Knox v. Wood.
8 Term Rep:
have seen in a former page, there may not be an insurance upon “commissions expected to arise,” &c. for that would be to insure an expectation of an expec- Park, p. 405, tation.
Again, where the valuation was left blank, but the Douglas, 315, defendant had suffered judgment by default, the policy Fletcher. being on a foreign ship, the plaintiff was suffered to recover under the writ of inquiry without giving any evidence of interest.
And this doctrine of restraining the enactments of the wagering statute to ships belonging to His Majesty was 13
, Craufurd v. recognized in a subsequent case.
Hunter, A policy upon condition of a certain act not happening is good. As where underwriters agreed to pay a total loss in case a ship should not be allowed by the Russian government to discharge her cargo at St. Petersburg; here the agreement showed on its face that the nonadmission of the goods would be a loss, and the Court 12 East, 124, held it not to be a gaming policy, and not upon the Puller v.Glover. mere voyage, but, in fact, upon the goods.
Certainly, where there is no interest at all, the policy is not to be sustained. The plaintiff paid the defendant 201. in consideration that if the ship saved her passage to China that season, he should receive 1,000l.; al- Cowper, 583, though the plaintiff had some goods on board this was Same point, held to be wagering, and Lord Mansfield's doctrine in Douglas, 468,
Lowry v. BourLewis v. Rucker, before referred to, was established. dice. And where the insurance is on the ship's arrival, and the 1 Term Re
304, Kemp. v. policy is on the goods, it is void for wagering.
Vigne. The statute mentioned was passed to prevent insurances upon “interest or no interest,” there being doubts whether such contracts were absolutely void, although
Ece Park, p. several cases had been determined against their validity. 397-396.
The first section prohibits the insuring “ interest or 19 Geo. 2, c. 37. “ no interest, or without further proof of interest than the
policy, or by way of gaming, or wagering, or without “ benefit of salvage to the insurer.” The second section excludes privateers cruising against the King's enemies from the enactment.
“Provided also, that any merchandizes or effects from
any ports or places in Europe or America, in the pos“ session of the Crowns of Spain or Portugal, may be “ assured in such way and manner as if this Act had “ not been made.” All exports from Spain and Portugal being necessarily made in the names of the subjects of those countries agreeably to their laws, it followed that the goods which the subjects of this and other countries exported from Spain and Portugal could not be insured without this exception.
The act of a third person may create a good insurance, if the assured afterwards assent to it. The plaintiffs in the case now mentioned were creditors of a house in Spain, which house consigned some goods to other
persons, with a bill of lading, and directed them to hold 1 Bosanquet & a part of the cargo for the plaintiff; it was held, that a Hill v. Secretan. good insurable interest had accrued, although no orders Id. 316, Wolff had been given by the plaintiff for these goods. v. Horncastle.
So where an insurance had been made for the benefit 2 Mlaule & Sel. 485. Hagedorn of an alien enemy who adopted it two years afterwards, and see 13 last, the underwriter was considered liable, for the party had 274, Routh v. a right to effect the insurance on the chance of its Thompson ; 1 Taunion, 325, being adopted. Lucena v. Crau.
Re-assurance and double Insurance.
19 Geo. 2, c. 37, S. 4.
Re-assurance, a contract which an underwriter formerly. made with others of his own business, in order to throw the risk upon them which he was fearful himself of abiding, is now prohibited by an Act of Parliament, “unless the as
surer should be insolvent, become a bankrupt, or die.”
It was contended, that the ships of foreigners were not included within this restriction, probably because they were considered in that light in the discussions upon the Term Rep. clauses against wagering. But as his Majesty's ships Fletcher. are expressly mentioned in those sections against gaming policies, and the forbidding of re-asurance is general, the Court soon resolved it as clear, that the Act extended to foreign shipping. Lord Chief Justice Mansfield seemed to be of opinion that although the statute was intended to prevent gambling, a new assurance at a higher premium would not be a re-assurance, but it was not necessary to decide the point.
i Taunton, 51. A double insurance is where the assured endeavours to secure twice the sum upon the same goods or ship. In this case the policy is not, as in the first case, vitiated, but the assured shall only recover the single sum. The defendant in such an action may recover a rateable. sum from the other underwriters if he think fit.
See Park,423-4. However, several interests may exist upon the same Park, p. 425. goods, as the master's in respect of his wages, the owner's 1 Burrow, 489,
Godin v. Lonin respect of the subject matter itself, the freighter's; don Assurance. and another person's for bottomry, all which are insurable 2. Vernon, 717,
Harman v. Vaninterests, and will not make a double assurance.
For a double assurance is where the same man is to i Burrow, 496, receive two sums instead of one, or the same sum twice field; and see
By Lord Mansover for the same loss because of his two insurances. Marshall, 139
146. “ Touching the perils and adventures which we the
10. Losses. assurers are contented to bear, and do take upon us in " this voyage,—they are of the
i Term Rep. This insurance is against the immediate peril, and not
130, Jones v. any remote consequence. A vessel is wrecked, and part Schmoll, cited;
5 Maule & Sel of the cargo plundered by the inhabitants of a strange wyn, 431, coast, this is a loss by perils of the seas a.
Gudgeon. a Holt's Cases, 149, Bondrett v. Hentigg.
So it was where seamen were pressed away from the
ship, which in consequence went on shore, and grounded, 2 New Rep. by the opinion of three judges against Lord Chief Jus336 , Hodgson v. Malcolm.
If a ship run down another, though it be by gross neg. 4 Taunton, 126, ligence of those on board, it is such a peril, for the sea Smith r. Scott. does the mischief. So where the timbers shrunk, and 8 Taunton, 236, Elmslie v. Wid. the seams opened by reason of the heat, whereby the
cargo was damaged. So where a merchant ship, taken 1. Starkie, 157, in tow by a man of war, was exposed to a tempestuous Hagedorn v.
So where some animals were killed by the agita
tion of the waves, having received such injuries as to 5 Barnewall & occasion their death afterwards, although the policy Alderson, 107, Lawrence v. run,“ warranted free from mortality,” for it was a peril Aberdein.
of the sea. So where a sloop ran on shore, and was
beaten to pieces through the carelessness of the watch Id. 171. Walker on duty, the same doctrine obtained, for here was an v. Maitland,
So where horses broke down their partitions and
bruised each other so severely in a storm, that they 3 Barnewall & died, and both in this case, and that of Lawrence and Cresswell, 793, Gabay v. Lloyd. Aberdein above, an usage at Lloyds for the under
writers not to pay where the cattle were warranted free from mortality and jettison, and the vessel arrived safe,
was held not valid against the general law. So where 2 Barnewall & a ship went into a dry harbour, the bed of which was Alderson, 315, Fletcher v. Ing. dry and uneven, and on the tide leaving her, she took
the ground. So where a ship was disabled within a short distance of the port of her destination, and ren
dered wholly unnavigable; and while in that condition 2 Bingham,205,
was seized by the Spanish Government, and the goods
on board confiscated. But if the vessel be driven on an Peake's Cases, enemy's coast undamaged, and be there captured, it is 212, Green v.
clearly a different kind of loss. So where a vessel broke 12 East, 648, loose in the night, and having sustained some damage Livie v. Janson, was got off, but detained by the American Government
Hahn v. Corbett.
for breaking an enibargo, for the proximate cause was capture. Loss by worms eating the bottom of the vessel has 1 Espinasse,
444, Rohl v. been deemed not to be a loss by perils of the sea, and this
Parr. was decided by a jury upon the usage. Nor a similar
4 Campb. 203, injury done by rats.
Hunter v. Poits. See Park, p. 103, Gregson v. Gil
6 Term Rep. 656, Tatham v. Hodgson. And if a ship be bove down on a beach within reach 3 Taunton, 227, of the tide and there be bilged, it is a peril on land, and Whitmore.
Thompson v. not of the sea.
If a ship has not been heard of for a considerable time, it may fairly be presumed that she has been cast
2 Strange,1199, away. The evidence was that the ship sailed out of
Green v. Brown; port, and had never since been heard of, and the plaintiff Park, 106,
Newby v. Read. recovered. You need not show that she never arrived
2 Campb. 85, at her port of destination. And the presumption upon Twemlow v. this subject will be governed by the Court and jury. In Houstman v. Proof was given that the ship never arrived at her port Thornton, by of destination, and that a report prevailed at the place Holt's Cases, whenee she sailed, that she had foundered at sea ; but 243. none of the crew were called, nor did the plaintiff show 6 Barnewall & that he could not procure their attendance: the evidence Koster v. Reed. was held sufficient. But you must prove that the ship did 2 Campb 6'
Cohen v. Hinck actually set sail upon her voyage, or that a licence has ley. been obtained, and a convoy bond will be sufficient Id. 79, Marshall
v. Parker ; primâ facie evidence that the voyage has been com- Id. 51. , menced. But if the crew have been heard of, it is a question whether the presumption can continue, and at
Ryan & all events some direct testimony of the prosecution of Moody, 333,
Koster v. Innes. the voyage must be given.
The captain of a merchant vessel being chased by a French privateer, and finding that he could not escape, set her on fire; Lord Ellenborough held the assured · Campb. 123, entitled to recover, for “ fire is still the causa causans," mington.
Gordon v. Rim