If goods are usually landed from a ship in a certain port by boats or lighters, they are not landed and are under the policy while on board the lighters. And this would be true if this mode of landing the goods was unusual, but justified by the necessity of the case. (m) It has, however, been held, that if a consignee sends his own lighter to receive the goods, they are delivered to him when put on board his lighter, and the insurance ceases. (n) Whenever the voyage insured is abandoned or broken up, by a peril not insured against, the insurance ceases. (0) Because the insurers are liable for the direct, immediate, and inevitable consequences of a peril insured against, we should say that they were thus liable for those consequences, although they occur after the insurance has ceased, provided the injury took place while the property was covered by the policy. (p) * 368 * SECTION V. OF OPEN AND OF VALUED POLICIES. A.-Of Open Policies. ject of insurance. (q) As wager policies are now void both in England and in this country, the insured must have at risk some interest in the subThis may be any legal or equitable interest whatever, if it be such that the peril against which the insurance is made, would cause a pecuniary loss to the insured by its immediate and direct effect. (r) If the policy does not state the as agreed upon by both parties, (m) Matthie v. Potts, 3 B. & P. 23; Stewart v. Bell, 5 B. & Ald. 238; Wadsworth v. Pacific Ins. Co., 4 Wend. 33; Osacar v. Louisiana State Ins. Co., 17 Mart. La. 386. (n) Sparrow v. Caruthers, 2 Stra. 1236. But see Langloie v. Brant, cited 2 B. & P. 434, note. If he merely hires a lighter and pays for it himself, the risk continues till the goods are landed. Rucker v. London Ass. Co., 2 B. & P. 432, note; Hurry v. Royal Exch. Ass. Co., 2 B. & P. 430. See Strong v. Natally, 4 B. & P. 16; Low v. Davy, 5 Binn. 595. (0) Brown v. Vigne, 12 East, 283. (p) Knight v. Faith, 15 Q. B. 649. See Meretony v. Dunlope, cited 1 T. R. value of the property insured, this value must be proved by 260; Furneaux v. Bradley, 2 Marsh. Ins. 584. (q) Amory v. Gilman, 2 Mass. 13; Stetson v. Mass. Ins. Co., 4 Mass. 336; Lord v. Dall, 12 Mass. 118; King v. State Ins. Co., 7 Cush. 10; Alsop v. Commercial Ins. Co., 1 Sumner, 464. By statute, 19 Geo. II., c. 37, wager policies are made illegal. () Lucena v. Craufurd, 5 B. & P. 302; Craufurd v. Hunter, 8 T. R. 13; Stirling v. Vaughan, 11 East, 619; Hancox v. Fishing Ins. Co., 3 Sumner, 140; Fireman's Ins. Co. v. Powell, 13 B. Mon. 311; Waters v. Monarch Ins. Co., 5 Ellis & B. 870; Wilson v. Martin, 11 Exch. 684; Rice v. Tower, 1 Gray, 426. evidence after the loss occurs. Such a policy is called an OPEN POLICY. A policy may be made and delivered which as yet covers no property; because it may provide that the property to be insured under it shall be defined and ascertained by statements to be subsequently and at various times indorsed upon the policy. (s) 1 These policies always provide for the manner in which ships or cargo or any maritime interest shall be indorsed upon the policy, or entered in a designated book so as to come under insurance; and these provisions are strictly enforced. (ss) Such a policy is sometimes called an "open policy," and sometimes a "running policy." The insured by such a policy has no right to make an indorsement which conflicts with the body of the policy. (t) It has been held, that these indorsements are to be regarded as so many contracts of insurance; and generally speak- 369 ing, the insurers, by an open policy on merchandise to be shipped by a certain route, are obliged to insure all shipments made to the insured by that route, if duly indorsed, with due information to the insurers of the circumstances they are entitled to know. But it is also true, that the language of the policy may show that the contract is not an absolute one, but that the underwriters can elect in each case whether to take the risk or not. (u) 2 Where the value of the property insured is agreed upon by the parties, and this value is stated in the policy, usually or always (s) Langhorn v. Cologan, 4 Taunt. 330; Neville v. Merch. Ins. Co., 17 Ohio, 192; Newlin v. Ins. Co., 20 Penn. St. 312; Ralli v. Jansen, 6 Ellis & B. 422, 36 Eng. L. & Eq. 198. (ss) Plahto v. Merchants Ins. Co., 38 Mo. 248; Hartshorn v. Shoe, &c. Ins. Co., 15 Gray, 240. (t) Entwisle v. Ellis, 2 H. & N. 549. But the insurers may agree to alter the terms of the contract by the indorsement. Kennebec Co. v. Augusta Ins. Co., 6 Gray, 204. Though it seems that if the indorsement alters the policy, the fact that the underwriters place their initials to the in dorsement is not conclusive evidence of their assent to the alteration. Entwisle v. Ellis, supra. The policy and the indorsement should be construed together, unless they cannot be reconciled, in which case the indorsement should govern. Protection Ins. Co. v. Wilson, 6 Ohio St. 553. (u) New York Ins. Co. v. Roberts, 4 Duer, 141; E. Carver Co. v. Manuf. Ins. Co., 6 Gray, 214; Hartshorn v. Shoe & L. Dealers Ins. Co., 15 Gray, 240; Orient Ins. Co. v. Wright, 23 How. 401; Sun Ins. Co. v. Wright, id. 412; Edwards v. St. Louis Ins. Co., 7 Mo. 382; Douville v. Sun Ins. Co., 12 La. An. 259. 1 Under a "floating" marine policy for "goods" contracted for, there is no insur able interest in goods not specifically appropriated to the insured prior to the loss. Stock v. Inglis, 9 Q. B. D. 708. — K. 2 Where underwriters had given an "open cover or statement of the terms on which they would make insurance, it was held that an application for insurance within the terms of the open cover was an acceptance of an offer, and that a binding contract was thereby formed. Bhugwandass v. Netherlands Ins. Co., 14 A. C. 83. — W. by the phrase "valued at $," such a policy is called a VALUED POLICY. (xx) This valuation is final and conclusive upon both parties. (v) It must not, however, make the policy a wager policy, which it would do if the property so valued had no real value. (w) But all maritime property and merchandise far more than the ship - may have very wide limits, within which a valuation may be honest and valid. And after much adjudication on the subject of valued policies, it may be said, that a mere exaggeration of a real and an actual value, if it was not enormous and out of all proportion to the fact, would not avoid the valuation. (x) It is, however, certain that a valuation intended to cover an illegal interest, or to insure illegally in respect to the peril, (y) or made fraudulently, would be void; (2) and an excessive over-valuation might be evidence of fraud. (a) * 370 * A valuation in one policy has no influence in determining the value of the same thing, as it is insured by other insurers. (b) If an insured owns only a certain proportion or share of the property insured, a general valuation will be held to be a valuation of that share, (c) unless otherwise stated or implied in the policy. (d) But if the valuation be of goods, all of which are included in the valuation, and a part only is put on board and at risk, the valuation applies to that part only pro rata. (e) The policy may provide for any of these cases; but, without such provision, a valuation of the whole subject-matter will be regarded (v) Hodgson v. Mar. Ins. Co., 5 Cranch, 100, 6 Cranch, 206; Miner v. Tagert, 3 Binn. 204; Coolidge v. Gloucester Ins. Co., 15 Mass. 341; Feise v. Aguilar, 3 Taunt. 506; Providence, &c. Co. v. Phoenix Ins. Co., 89 N. Y. 559. (w) Lewis v. Rucker, 2 Burr. 1171; Clark v. Ocean Ins. Co., 16 Pick. 295; Wolcott v. Eagle Ins. Co., 4 Pick. 438. (x) Alsop v. Commercial Ins. Co., 1 Sumner, 473; Robinson v. Manuf. Ins. Co. 1 Met. 143; Irving v. Manning, 1 H. L. Cas. 304, 6 C. B. 419; Phenix Ins. Co. v. M'Loon, 100 Mass. 475. (xx) See Woodside v. Globe M. Ins. Co., [1896] 1 Q. B. 105; Field S. S. Co. v. Burr, [1899] 1 Q. B. 579; Hoggarth v. Walker, [1900] 2 Q. B. 283; Royal Exchange Ass. Co., 7 Foster, 155; Protection Ins. Co. v. (a) See cases in note, supra. (b) Higginson v. Dall, 13 Mass. 96. (c) Feise v. Aguilar, 3 Taunt. 406. (d) Dumas v. Jones, 4 Mass. 647: Mayo v. Maine Ins. Co., 12 Mass. 259; Murray v. Columbian Ins. Co., 11 Johns. 302. (e) Forbes v. Aspinall, 13 East, 323; Wolcott v. Eagle Ins. Co., 4 Pick. 429; Clark v. Ocean Ins. Co., 16 Pick. 295; Mutual Ins. Co. v. Munro, 7 Gray, 249. See Denoon v. Home, &c. Ass. Co., L. R. 7 C. P. 341. Corp. v. Sjoforsakrings Aktiebolaget Vega, [1901] 2 K. B. 567; The Dora Forster, [1900] P. 241. * 371 as a valuation of the insured's whole interest in it, including the premium he pays. (ƒ) The valuation is often applied to a ship, and not unfrequently to the freight, or to the cargo; and sometimes to an insurance of profits under that name, although more frequently the profits are included in a valuation of the goods. (g) If freight be valued, the valuation is held as that of the freight of a full cargo; and where a part only is at risk the valuation applies only pro rata. (h) If profits are valued, and the goods are lost, the English courts seem to require proof that there would have been some profit, had they arrived safely, and then the valuation comes in. (i) Our courts, however, hold, that the loss of goods carries necessarily a loss of profits, and the valuation of profits then takes effect, without any evidence that there would have been any profits. (j) * SECTION VI. OF DOUBLE INSURANCE. * 371 That is a double insurance, where, by different policies, the same interest of the same parties in the same subject-matter is insured against the same risks; (x) and it is over-insurance if the whole amount insured by all the policies exceeds the whole value of the property insured. (y) (f) Brooks v. Oriental Ins. Co., 7 Pick. 259; Mayo v. Maine Ins. Co., 12 Mass. 259; Minturn v. Columbian Ins. Co., 10 Johns. 75. (g) See cases supra, p. 362, note (g). (x) Gross v. New York & T. S. S. Co., 107 Fed. 516, 520. Under a clause by which other insurance prior in date is to be first applied to payment of a loss, the date of the policy, and not that on which the risk attaches, is the controlling time. Deming v. Merchants', &c. Co., 90 Tenn. 306, 17 S. W. 89. Other insurance relates to subsequent insurance, and the insurer waives such a condition if he issues the policy knowing that other insurance already exists. Northern Ass. Co. v. Grand View Bldg. Ass'n, 101 Fed. 77. It is not against public policy for different underwriters to agree to abide by the result of a suit against one of them. New Jersey & P. C. Works v. Ackerman, 39 N. Y. S. 585. Waiver of a condition against other insurance must be supported by a con Wolcott v. Eagle Ins. Co., 4 Pick. 429. See Boardman v. Boston Marine Ins. Co., 146 Mass. 442. (i) Hodgson v. Glover, 6 East, 316. (j) Patapsco Ins. Co. v. Coulter, 3 Pet. 222. sideration. United Firemen's Ins. Co. v. Thomas, 82 Fed. 406. Two policies issued at different times, but to become operative at the same time, are not simultaneous. Carleton v. China Mut. Ins. Co., 174 Mass. 280, 54 N. E. 559. (y) Over-valuation in the policy justifies over-insurance to the same extent, if not fraudulent, because the insurer is estopped from asserting any excess in the valuation. Int'l Nav. Co. v. Atlantic Mut. Ins. Co., 100 Fed. 304, 324. Fraud in valuation is a question of fact for the jury; it need not be proved beyond a reasonable doubt, and must have been intended. F. Dohmen Co. v. Niagara F. Ins. Co., 96 Wis. 38, 71 N. W. 69; Commercial Ins. Co. v. Friedlander, 156 Ill. 595, 41 N. E. 183; Western Ass. Co. v. Ray (Ky.), 49 S. W. 326; Teutonia F. Ins. The marine policies of this country usually contain a clause which, however varied, has, and is intended to have, this effect; that if there be any prior insurance, the insurer shall be liable only for so much of the property as the prior insurance leaves uninsured. (k) Possibly the law might now so construe successive policies without this clause; but the clause was introduced because it seemed then to be law, that all the policies attached to all the property pro rata. And if either insurer paid the whole loss, or more than his proportion, he might recover from the other insurers the share they were bound to pay. If policies are simultaneous, they certainly attach to the whole property all at once, and all alike; (1) and they are sometimes expressly declared to be simultaneous that they may so attach. But if this be not expressly declared, and the policies bear date on the same day, the court will inquire into fractions of the day, in order to ascertain which is prior and which is subsequent ; and only when this cannot be ascertained would they be held to be simultaneous. (m) Priority under this clause means priority in effecting the insurance, and not priority in the beginning of the risk; and for this purpose, the contract may be shown to have been made at another time than its written date. (n) * 372 *If the first policy covers the whole property for a part of the time during which the second policy should attach, the first policy is suspended until the second policy ceases to attach, and then the first policy attaches. (0) If many policies attach to property when they are made, and the property is afterwards diminished in value below the amount of them all, the weight of authority seems to be in favor of discharging the latest policy, then the one next before it, and so on as the property lessens. (p) But doubts have been expressed on good reasons, whether, if there be a diminution in the property after all the policies have attached, this diminution should not be distributed among them all, pro rata. (q) If policies provide, as they sometimes do, that they shall be (k) Whiting v. Independent Ins. Co., (n) Lee v. Mass. Ins. Co., 6 Mass. 208. 15 Md. 297; Peters v. Delaware Ins. Co., (0) Kent v. Manuf. Ins. Co., 18 Pick. 5 S. & R. 473; American Ins. Co. v. Griswold, 14 Wend. 399. (1) Potter v. Mar. Ins. Co., 2 Mason, 475; Wiggin v. Suffolk Ins. Co., 18 Pick. 145. (m) Cases in preceding note, and Brown v. Hartford Ins. Co., 3 Day, 58. Co. v. Howell (Ky.), 54 S. W. 852; Hanover F. Ins. Co. v. Stoddard, 52 Neb. 745, 19. (p) Am. Ins. Co. v. Griswold, 14 Wend. 399. (2) Am. Ins. Co. v. Griswold, 14 Wend. 399, per Tracy, Senator; 2 Phillips, Ins., § 1261. See 2 Parsons, Mar. Law, 98, where this question is discussed at length. 73 N. W. 291; Virginia F. & M. Ins. Co. v. Saunders, 86 Va. 969, 11 S. E. 794. |