that the subject-matter of the insurance must be distinctly identified, either by actual description or by reference to other means of knowledge. And where there is no fraud or concealment on the part of the insured, his interest, which he intended to bring within the terms of the policy, will be brought within it, even by a liberal construction; and a mistake in the description will seldom prevent this construction. (h) The means of knowledge by which the description may be supplemented, may be the name of the consignee, (?) or the voyage, or the time, (j) or the port of shipment; (k) and it seems that if the description may attach equally to different shipments, the insured may attach the policy to either, even after the loss has occurred, if the terms of the policy do not exclude it, and if the declaration is honest and conforms to the intention of the parties. (1) If the policy be in the alternative, and the insured is interested in both the alternatives, as ship or * 363 cargo, and both have been at risk, (m) the policy attaches to both; but if he is interested in only one, he may attach the policy wholly to that. There are many cases illustrative of the effect of the phrases commonly used in the description. (n) (h) See Ionides v. Pacific Ins. Co., L. R. 6 Q. B. 674; 7 Q. B. 517. In Ruan v. Gardner, 1 Wash. C. C. 145, the agent of the insured, by mistake, described the goods as marked (D) on board the Brothers. The goods were on board the vessel named, but not marked as described. Held, that the insured was entitled to recover, as the risk undertaken by the underwriters was neither changed nor increased. Policies usually contain the clause, after mentioning the name of the vessel, or by whatsoever other name or names the said vessel shall be named." Under this clause it is only necessary to prove the identity of the ship. Hall v. Mollineaux, cited 6 East, 386. See also Le Mesurier v. Vaughan, 6 East, 382; Clapham v. Cologan, 3 Camp. 382; Sea Ins. Co. v. Fowler, 21 Wend. 600. 66 (1) Ballard v. Merchants Ins. Co., 9 La. 258. (j) Sorbe v. Merch. Ins. Co., 6 La. 185. (k) Murray v. Col. Ins. Co., 11 Johns. 302; Rickman v. Carstairs, 5 B. & Ad. 651; Hunter v. Leathley, 10 B. & C. 858; Grant v. Paxton, 1 Taunt. 463. See Joyce v. Realm Ins. Co., L. R. 7 Q. B. 580; Jones v. Neptune Ins. Co., L. R. 7 Q. B. 702. (2) Harman v. Kingston, 3 Camp. 150; Craufurd v. Hunter, 8 T. R. 16, note; Henchman v. Offley, 2 H. Bl. 345, n.; Kewley v. Ryan, 2 H. Bl. 343. See New (m) Faris v. Newburyport Ins. Co., 3 Mass. 476. 66 (n)" Merchandise," or any equivalent word, does not apply to ornaments or clothing owned by persons on board, and not intended for sale. Ross v. Thwaite, Park, Ins. 25. Bullion on board not intended for the expenses of the master, crew, or passengers, is covered by the words goods and merchandise," Da Costa v. Firth, 4 Burr. 1966; or 66 cargo, Wolcott v. Eagle Ins. Co., 4 Pick. 429. "Goods and merchandise," will cover specie dollars. Am. Ins. Co. v. Griswold, 14 Wend. 399. "Cargo" has been held, not to cover live stock, or hay, corn, &c., put on board mainly for the use of the stock, although it was expected that a considerable quantity of it would remain unconsumed, and would be sold as cargo at the port of destination. Wolcott v. Eagle Ins. Co., supra. Live stock is generally insured eo nomine. Lawrence v. Aberdein, 5 B. & Ald. 107; Coit v. Smith, 3 Johns. Cas. 16. But under some circumstances cargo" would cover live The amount of the interest of the assured, as whether it be onehalf or any other proportion of the property, and its character, as whether he is interested as mortgagor or mortgagee, or as charterer or trustee or bailee, or whether his interest be legal or equitable, need not be specified; an insurance of property or interest generally covering all these. (0) We have seen, in the chapter on shipping, that public policy disapproves the carrying goods on deck, although the owner and shipper may agree to it, if they choose. For the same reason, a general policy on cargo does not cover goods on deck, without express provision to that effect. (p) But an exceptional usage may, if known and established, affect the policy on this point. There are numerous cases referring to this question. (q) It has been intimated, that a usage to carry such goods on such a vessel and on such a voyage, is not sufficient to bring the goods * 364 within the policy, unless there be * also evidence of a usage by insurers of paying for the loss of such goods. (r) (x) SECTION IV. OF THE BEGINNING AND THE END OF THE RISK. A policy of insurance should define, with great precision, the time when the risk insured against begins, and when it termi stock. Allegre v. Maryland Ins. Co., 2 Gill & J. 136; Chesapeake Ins. Co. v. Allegre, 2 Gill & J. 164. For other examples see Hill v. Patten, 8 East, 373; Paddock v. Franklin Ins. Co., 11 Pick. 227; Rogers v. Mechanics Ins. Co., 1 Story, 603; Pritchet v. Ins. Co. of N. A., 3 Yeates, 458; Hunter v. Prinsep, 10 East, 378; Marsh Ins. 316; Duplanty v. Commercial Ins. Co., Anthon, N. P. 114; Palmer v. Pratt, 2 Bing. 185. (0) Oliver v. Greene, 3 Mass. 133; Finney v. Warren Ins. Co., 1 Met. 16; Russel v. Union Ins. Co., 1 Wash. C. C. 409; Stetson v. Mass. Ins. Co., 4 Mass. 330; Higginson v. Dall, 13 Mass. 96; (x) A carrier may insure its liability for carrying goods on deck. Ursula Bright S. S. Co. v. Amsinck, 115 Fed. 242. After payment of the insurance the insurer is entitled to be subrogated to the rights of the insured against a carrier who negligently caused the loss. Liverpool & G. W. Steam Co. v. Phoenix Ins. Co., 129 U. S. 397, 9 S. Ct. 469, 32 L. Ed. 788; Wells v. Phil. Ins. Co., 9 S. & R. 103; (p) Wolcott v. Eagle Ins. Co., 4 Pick. 429; Adams v. Warren Ins. Co., 22 Pick. 163; Taunton Copper Co. v. Merchants Ins. Co., id. 108; Milward v. Hibbert, 3 Q. B. 120. (q) Milward v. Hibbert, 3 Q. B. 120; Da Costa v. Edmunds, 4 Camp. 142; Rogers v. Mechanics Ins. Co., 1 Story, 603; Cunard v. Hyde, 2 Ellis & E. 1; Merchants Ins. Co. v. Shillito, 13 Ohio, 559. (r) Taunton Copper Co. v. Merchants Ins. Co., 22 Pick. 108. Boston M. Ins. Co. v. Slocovitch, 55 N. Y. Super. Ct. 452. But an insurer cannot, in case of loss, be subrogated to the right of the insured to recover damages from a person of whom the latter was induced to buy the insured property through fraudulent representations as to its value. Farmers' F. Ins. Co. v. Johnston, 113 Mich. 426, 71 N. W. 1074. nates. This definition may be, either by referring to a moment of time, or to some fact, or to some place. That is, the insurance may be from a certain hour to a certain hour, or it may begin when certain goods are laden on board, or as soon as the ship reaches a certain place. In some way these termini must be sufficiently defined. A policy from to or from to A, We have seen that actual delivery may be proved in contradiction of the date, when the policy is to take effect from the time of delivery. But a policy may be made and delivered much later than the date, with the intention that it shall take effect from the prior date, or be retrospective. It may also be intended that the insurance shall attach, although the property has ceased to exist before the making and delivery of the policy. This is usually effected by the words in common use, "lost or not lost; " (t) but any other equivalent language would have the same effect. (u) An insurance beginning "on" a certain day covers the whole of that day. If it begins "from" a certain day, the word "from" has the effect of "after," and the day is excluded. (v) This, at least, is the general rule, although it might be 365 varied by other language in the policy, or by circumstances. (w) * Where the insurance is on goods, we know no better rule for determining when the policy attaches to them, than that it so attaches when it would attach to the vessel carrying them, were she insured. If the insurance is made "at and from" a certain place, the risk begins as soon as the vessel is at that places, and continues while she is there, and also when she leaves that place. The (s) Molloy, book 2, c. 7, § 14. See also, Manly v. United Ins. Co., 9 Mass. 89; Folsom v. Merchants Ins. Co., 38 Me. 414; Cleveland v. Union Ins. Co., 8 Mass. 308. (t) Paddock v. Franklin Ins. Co., 11 Pick. 227; Hucks v. Thornton, Holt, N. P. 30; Mead v. Davidson, 3 A. & E. 303; Sutherland v. Pratt, 11 M. & W. 296; Cobb v. New England Ins. Co., 6 Gray, 192. (u) Hammond v. Allen, 2 Sumner, 396, per Story, J. See also March v. Pigot, 5 Burr. 2802. (v) Chiles v. Smith, 13 B. Mon. 460; Lorent v. South Carolina Ins. Co., 1 Nott & McC. 505. (w) See Howard's Case, 2 Salk. 625; Pugh v. Leeds, Cowp. 714; Fuller v. Russell, 6 Gray, 128. 1 Insurance effected on the cargo carried by a specified steamship" and connections" means necessary connections, and the insurance does not cover a loss occurring in a vessel to which the goods were unnecessarily transshipped. Schroeder v. Schweizer & Geselelschaft, 60 Cal. 467. — W. 2 But when the insured knows that the property is destroyed, no valid insurance can be made. People v. Dimick, 107 N. Y. 13. — W. question has arisen, What must be the condition of the vessel on her arrival, for the policy to attach? It has been said, that she must then be in safety from the perils insured against. And as an insurance to a place does not cease until she has arrived there, and been there moored twenty-four hours in safety (and our policies usually contain a clause to that effect), it has been held, that a policy "at" did not attach on the arrival of a ship, until after the twenty-four hours of safety had expired. (x) But it is obvious that the terms of the policy and the circumstances of the case must have much effect in the application of these rules. So if the insurance is to take effect "at and from a certain port," it may be difficult to determine what is that port, or what places are comprehended within it. And this question of mixed law and fact can only be determined by usage, or other evidence. (y) Insurance "from" a place begins only when a vessel casts off her moorings, or weighs her anchor, and moves, with the inten* 366 tion of sailing. (2) Goods insured "at and * from" a place, do not, unless it is expressly so provided in the policy, (a) come under the policy until laden on board the vessel, or on board a boat or lighter to be carried to the vessel in conformity with the usage of that place. (b) But they would be covered by such a policy, if brought there in a vessel from another place. (c) If the insurance be to a port of discharge, it continues at and from such ports as the vessel may touch at for inquiry, advice, or repair, without discharging any part of her cargo. (d) Any such expression as "final port," or "ports of discharge," would continue the insurance on so much of the cargo as is not there discharged. (e) And (x) See Garrigues v. Coxe, 1 Binn. 592; Patrick v. Ludlow, 3 Johns. Cas. 14; Motteux v. London Ass. Co., 1 Atk. 548; Parmeter v. Cousins, 2 Camp. 235; Bell v. Bell, 2 Camp. 478. (y) De Longuemere v. Firem. Ins. Co., 10 Johns. 126; Higgins v. Aguilar, cited 2 Taunt. 406; McCargo v. Merchants Ins. Co., 10 Rob. La. 334; Moxon v. Atkins, 3 Camp. 200 Bell v. Mar. Ins. Co., 8 S. & R. 98; Hull Dock Co. v. Browne, 2 B. & Ad. 43; Stockton R. Co. v. Barrett, 7 Man. & G. 870; Payne v. Hutchinson, 2 Taunt. 405; Constable v. Noble, 2 Taunt. 403; Brown v. Tayleur, 4 A. & E. 211. (z) Mey v. South Carolina Ins. Co., 3 Brev. 329. If a vessel is insured at and from A to B, from thence to C and back to A, a loss at B will be covered. Bradley v. Nashville Ins. Co., 3 La. An. 708; Bell v. Marine Ins. Co., 8 S. & R. 98. (a) See Kennebec Co. v. Augusta Ins. Co., 6 Gray, 204. (b) Coggeshall v. Am. Ins. Co., 3 Wend. 283; Parsons v. Mass. Ins. Co., 6 Mass. 208. (c) Gardner v. Col. Ins. Co., 2 Cranch, C. C. 473. (d) Coolidge v. Gray, 8 Mass. 527; Lapham v. Atlas Ins. Co., 24 Pick. 1; King v. Hartford Ins. Co., 1 Conn. 333; Clark v. United Ins. Co., 7 Mass. 365. (e) Inglis v. Vaux, 3 Camp. 437; Preston v. Greenwood, 4 Doug. 28; Moore v. 1 A policy covered goods "now on board or to be shipped,” “at and from" a specified port. It was held to attach as soon as a portion was shipped at the port named. Colonial Ins. Co. v. Adelaide Marine Ins. Co., 12 A. C. 128. - W. if the insurance be to a port of discharge, the insurance ceases when the cargo is actually unladen at any port, whether it be the port originally intended or another. (f) Sometimes it is provided that the insurance is for a definite period, and if the vessel is "at sea" at the end of the time, the risk is to continue until her arrival at port, or the port of destination. The meaning of the phrase "at sea," or the equivalent phrase "on her passage," (g) seems to have been somewhat controverted; but we consider the rule as now well settled. If a vessel is in a port at the expiration of the time, she cannot be said to be at sea, (h) unless she is in that port by restraint and against her will. (i) If a vessel has set sail before the expiration of the time, *367 although not fairly at sea, the underwriters are liable for a subsequent loss. (j) (x) The clause terminating the insurance only when the vessel has been moored twenty-four hours in safety at the port of arrival, has received judicial construction. If the vessel be ordered off or into quarantine before the twenty-four hours have passed, the policy does not cease to attach; (k) but if she be safely moored, and continue safe through a storm or other peril, which begins either before or within the twenty-four hours, and is afterwards lost through the same storm or peril, she is not lost within the policy. (1) Taylor, 1 A. & E. 25; Upton v. Salem (f) Moffat v. Ward, 4 Doug. 31, note; Shapley v. Tappan, 9 Mass. 20. (g) In Bowen v. Hope Ins. Co., 20 Pick. 275, insurance was effected for one year, and if "at sea when the year expired, then until the arrival of the vessel at port. In Bowen v. Merchants Ins. Co., 20 Pick. 275, the insurance was the same, except that the phrase in the latter case was "if on her passage." The two expressions were considered as synonymous. (h) It was said by Parker, C. J., in Wood v. New England Ins. Co., 14 Mass. 31, that "A vessel is considered in that condition ('at sea'), while on her voyage, and pursuing the business of it, although during part of the time, she is necessarily within some port, in the prosecution of her voyage." This dictum has however (x) The question whether a warranty in a marine policy on goods in ships "sailing on or after a certain date is complied with depends upon the master's intention when the vessel leaves her moor Gookin been pronounced to be incorrect. (i) Wood v. New England Ins. Co., 14 Mass. 31. (j) Bowen v. Hope Ins. Co., 20 Pick. 275; Union Ins. Co. v. Tysen, 3 Hill, 118. (k) Waples v. Eames, 2 Stra. 1243. (7) Bill v. Mason, 6 Mass. 313. By arrival is meant the reaching the usual place of unloading. Samuel v. Royal Exch. Ass. Co., 8 B. & C. 119; Angerstein v. Bell, Park, Ins. 45; Meigs v. Mutual Ins. Co., 2 Cush. 439; Whitwell v. Harrison, 2 Exch. 127; Dickey v. United Ins. Co., 11 Johns. 358; Zacharie v. Orleans Ins. Co., 17 Mart. La. 637 ; Gray v. Gardner, 17 Mass. 188. If a vessel arrives a mere wreck, she cannot be said to have been in safety a moment. Shawe v. Felton, 2 East, 109. ings. Sea Ins. Co. v. Blogg, [1897] 1 Q. B. 27; 37 Am. L. Reg. N. s. 201. A clause that freight is covered "from the time of the engagement of the goods,' refers to the voyage described in the policy. The Copernicus, [1896] P. 154, 237. |