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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
Again, where the valuation was left blank, but the defendant had suffered judgment by default, the policy 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 recognized in a subsequent case.
Park, p. 405,
Knox v. Wood.
8 Term Rep.
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 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.; although the plaintiff had some goods on board this was held to be wagering, and Lord Mansfield's doctrine in Lewis v. Rucker, before referred to, was established. And where the insurance is on the ship's arrival, and the policy is on the goods, it is void for wagering.
The statute mentioned was passed to prevent insurances upon "interest or no interest," there being doubts whether such contracts were absolutely void, although several cases had been determined against their validity. The first section prohibits the insuring "interest or "no interest, or without further proof of interest than the
Term Rep. 304, Kemp. v. Vigne.
See Park, p.
1 Bosanquet &
Hill v. Secretan.
2 Maule & Sel.
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 a part of the cargo for the plaintiff; it was held, that a good insurable interest had accrued, although no orders had been given by the plaintiff for these goods.
So where an insurance had been made for the benefit 485. Hagedorn of an alien enemy who adopted it two years afterwards, and see 13 East, the underwriter was considered liable, for the party had 274, Routh v. a right to effect the insurance on the chance of its 1 Taunton, 325, being adopted.
Lucena v. Crau
19 Geo. 2, c. 37,
Re-assurance and double Insurance.
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 clauses against wagering. But as his Majesty's ships 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.
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.
However, several interests may exist upon the same goods, as the master's in respect of his wages, the owner's in respect of the subject matter itself, the freighter's; and another person's for bottomry, all which are insurable interests, and will not make a double assurance.
For a double assurance is where the same man is to receive two sums instead of one, or the same sum twice over for the same loss because of his two insurances.
Touching the perils and adventures which we the assurers are contented to bear, and do take upon us in this voyage, they are of the
This insurance is against the immediate peril, and not any remote consequence. A vessel is wrecked, and part of the cargo plundered by the inhabitants of a strange coast, this is a loss by perils of the seas".
2 Term Rep.
161, Andree v.
1 Taunton, 51.
Godin v. Lon
Harman v. Vanhatton.
1 Burrow, 496, By Lord Mans
field; and see
a Holt's Cases, 149, Bondrett v. Hentigg.
2 New Rep. 336, Hodgson v. Malcolm.
4 Taunton, 126,
Smith r. Scott.
8 Taunton, 236,
Elmslie v. Wild.
1 Starkie, 157,
So it was where seamen were pressed away from the ship, which in consequence went on shore, and grounded, by the opinion of three judges against Lord Chief Justice Mansfield.
If a ship run down another, though it be by gross negligence of those on board, it is such a peril, for the sea does the mischief. So where the timbers shrunk, and the seams opened by reason of the heat, whereby the cargo was damaged. So where a merchant ship, taken in tow by a man of war, was exposed to a tempestuous sea. So where some animals were killed by the agitation of the waves, having received such injuries as to 5 Barnewall & occasion their death afterwards, although the policy "warranted free from mortality," for it was a peril 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. immediate destruction.
3 Barnewall & Cresswell, 793,
Gabay v. Lloyd.
2 Barnewall & Alderson, 315,
So where horses broke down their partitions and bruised each other so severely in a storm, that they died, and both in this case, and that of Lawrence and Aberdein above, an usage at Lloyds for the underwriters 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 a ship went into a dry harbour, the bed of which was 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 rendered wholly unnavigable; and while in that condition 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 clearly a different kind of loss. So where a vessel broke loose in the night, and having sustained some damage Livie v. Janson. was got off, but detained by the American Government
2 Bingham,205, Hahn v. Corbett.
212, Green v. Elmslie.
12 East, 648,
for breaking an embargo, for the proximate cause was capture.
Loss by worms eating the bottom of the vessel has been deemed not to be a loss by perils of the sea,
was decided by a jury upon the usage. Nor a similar 4 Campb. 203,
injury done by rats.
Hunter v. Potts. See Park, p. 103, Gregson v. Gilbert; 6 Term Rep. 656, Tatham v. Hodgson.
And if a ship be hove down on a beach within reach of the tide and there be bilged, it is a peril on land, and not of the sea.
3 Taunton, 227, Whitmore. Thompson v.
Newby v. Read.
2 Campb. 85, Twemlow v.
If a ship has not been heard of for a considerable time, it may fairly be presumed that she has been cast away. The evidence was that the ship sailed out of a Strange,1199, port, and had never since been heard of, and the plaintiff Park, 106, recovered. You need not show that she never arrived at her port of destination. And the presumption upon 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, Gibbs, C. J. whence 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 was held sufficient. But you must prove that the ship did actually set sail upon her voyage, or that a licence has been obtained, and a convoy bond will be sufficient primâ facie evidence that the voyage has been commenced. But if the crew have been heard of, it is a question whether the presumption can continue, and at all events some direct testimony of the prosecution of the voyage must be given.
2 Campb. 51,
Cohen v. Hinck
Id. 79, Marshall
Koster v. Innes.
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,"
Gordon v. Rim