the underwriter was liable to an average or partial loss upon damaged corn. In consequence of this decision, the two companies before mentioned, altered the memorandum by striking out the words "or the ship be stranded;" so that now they are liable to no losses which can happen to such commodities, except general averages and total losses; but the old form is still retained by private assurers.—Cantillon v. Lond. Assur. Comp. 3 Burr. 1553.

There are some kinds of property which do not fall under the general denomination of goods in a policy; and for the loss of which the underwriters are not answerable, unless they are specifically named; such as goods lashed on deck, the captain's clothes, and the ship's proxisions. A policy on goods means only such goods as are merchantable, and a part of the cargo; and therefore, when goods like the present are meant to be assured, they are always assured by name; and the premium is greater.-Ross v. Thwaite, Šitt. after Hilary, 16 Geo. IIL

It is questioned, whether a cargo of dollars or other coin, jewels, &c. if lost, be recoverable under a policy upon goods and merchandises generally. This point has never been discussed in England; but Magens, in the Treatise on Assurances, p. 10, states explicitly that gold and silver, coined and uncoined, pearls and other jewels, may be assured at London and Hamburgh, and several other places, under the general expression of merchandise. Magens is confirmed by other writers on the subject, Roccus, Not. 17.

a blank being

The name of the port at which the goods are laden, and to which they are bound.—This has been always held to be necessary in policies, and must be so, on account of the evident uncertainty which would follow from a contrary practice, as the assurer would never know what the risk was which he had undertaken to assure; and, therefore, if a ship be assured from London to left by the lader of the goods to prevent a surprise by an enemy, and if in her voyage she happen to be cast away, though there be private instructions for her port, yet the assured must sit down with his loss, by reason of the uncertainty. Molloy, c. ii, c. 7, § 14. But where a policy was on a ship for four months at and from a place to any port or ports whatsoever; it was holden, that an open roadstead (being the usual place of loading and unloading) is a port within the meaning the policy,-Cockey v. Atkinson, 2 Barn. & Ald. 460. It is also customary to state in the policy at what port or place the ship may touch and stay during the voyage, so that it shall not be considered as a deviation to go to any of those places.

be

The time when the risk commences, and when it ends.-The English policies expressly declare, that "the adventure shall begin upon the said goods and merchandise, from the loading thereof on board the said ship, and so shall continue until the said ship, goods, and merchandises shall be arrived at L.; and upon the said ship till she has moored at anchor twenty-four hours in good safety; and upon the goods till the same there safely discharged and landed." From these words, it is obvious, that the assurers are not answerable for any accident which may happen to the goods in lighters or boats going aboard, previous to the voyage; yet, as the policy says the risk shall continue till the goods are safe'y landed, it seems the assurer continues responsible for the risk to be run in carrying the goods in boats to the shore. If there be a loss, however, in these cases, the accident must have happened while the goods were in the boats or lighters belonging to the ship; but in a case where the owner of the goods brings down his own lighter, receives the goods out

of

of the ship, and, before they reach land, an accident happens whereby the goods are damaged, the assurer is discharged, although the assurance be upon goods to London, and till the same be safely landed there.-Sparrow v. Carruthers, 2 Stra. 1236.

In the unloading of goods there should be no unreasonable delay, but this must always depend upon circumstances.

The risk on the body of the ship is generally to commence "from her beginning to load at and so shall continue and endure

until the said ship shall arrive at and hath there been moored at anchor twenty-four hours in good safety." This mode of stating the commencement of the risk, must commonly be supplied to assurances on ships outward bound; for, when assurance is made on the homeward risk, the beginning of the adventure is sometimes stated to be "immediately from and after her arrival at the port abroad;" at other times, "from the departure ;" and, in short, it is very variable, depending upon the inclination of the assurer.-1 Magens, 47.

Of the various perils and risks against which the underwriter assures. -The words now used, expressive of the assurer's risks are very extensive, including all perils of the sea, men of war, fire, enemies, pirates, rovers, thieves, jettisons, letters of mart, and countermart, surprisals, takings at sea, arrests, restraints, and detainments, of all kings, princes, and people, of what nation, condition, or quality soever; barratry of the master or mariners, and all other perils, losses, and misfortunes, that have or shall have come to the hurt, detriment, or damage of the said goods and merchandises, and ship, or any part thereof."

A transport in the service of government was insured for twelve months, during which period she was ordered into a dry harbour, the bed of which was uneven, and on the tide having left her, she received damage by touching the ground, It was holden that this was a loss by perils of the sea. Fletcher v. Inglis, 2 Barn. & Ald. 315. And see Phillips and another v. Barber, 5 Barn. & Ald. 161.

The law of England is totally silent as to the description of thieves meant by the policy; whether the assurer undertakes as well against thefts committed by the master or mariners, as against thefts committed from without. That he is liable in the latter case cannot be doubted. Harford v. Maynard, Sittings at Guildhall, Hilary vacation, 1785, and Molloy, B. ii. c. 7, § 5; but foreign writers assert that he is not liable for the former. Roccus, Not. 42.

In addition to these, it is frequently the practice to assure her, lost or not lost, in which, if the ship should be lost at the time of the assurance, still the underwriter, provided there be no fraud, is liable. It is said this practice is not adopted by foreign nations, but it is expressed in the French policies.

The consideration or premium for the risk or hazard run.-This is always expressed to have been received at the time of underwriting; "we, the assurers, confessing ourselves paid the consideration due unto us for this assurance by the assured." This being subscribed by the underwriter, it is proper to inquire whether, if the premium were not actually paid at the time, he could afterwards maintain an action for it against the assured, who might then produce his subscription as evidence against himself. Questions upon policies of assurance stand most broadly upon the usage of the place where the policy is effected, and this question would, no doubt, be determined by usage. By the custom of London, the underwriter credits the broker, and not

the assured, for the premium; and therefore the underwriter cannot demand it of the assured, but the broker as certainly could.-Airey and others, assignees of Milton, v. Bland, Sittings at Guildhall, 14 Geo. III. The premium of consideration paid, given, or contracted for, must, like the risk, be inserted, by 35 Geo. III. c. 63. § 11.

The day, month, and year, on which the policy is executed.—This insertion seems very necessary, because, by comparing the date of the policy with the date of facts which happened afterwards, or are material to be proved, it will frequently appear whether there is any reason to suspect fraud or improper conduct on the part of the assured.

But it becomes further necessary, in order to have the benefit of § 8. of the 35 Geo. III. c. 63. mentioned under the next head,

That it be duly stamped.—The act 55 Geo. III. c. 184. enacted, that from the 1st September, 1815, the duties thereby imposed on policies of assurance, should be payable in lieu of the duties imposed by divers anterior statutes, (see post, STAMP DUTIES, PART IV.) the powers and authorities of all which statutes, relating to the imposing, levying, &c the same, should be extended to this statute.

The only additional provisions to those enumerated in the former chapter, necessary to be noticed here, as bearing any immediate relation to the interests of those to whose particular use these pages are dedicated, are the following:

Commissioners of stamps are to provide stamped policies, which may be purchased, or persons may have their own vellum, &c., for policies stamped at the head office. For policies for £5,000, or upwards, the commissioners are to charge only the amount of the duty, and nothing for the vellum, &c.—35 Geo. III. c. 63.

Commissioners of stamps are to appoint officers in London for distributing policies, to any person or persons carrying on the business of assurance within the said city, on present payment of the duties, subject to the usual allowance of such present payment. But such distributors may, with the consent of the commissioners, open an account with any person or persons, carrying on the business of assurance within the said city, and may supply such persons with stamps for policies as the commissioners may direct, &c. And, if any such officer shall knowingly make any false entry, to the damage of any such persons, he shall pay treble the damages and costs.—

35 Geo. III. c. 63.

Policies inadvertently spoiled, or rendered unfit for use, at any time within six calendar months in which such policy shall have been delivered, may, at the head-office, be cancelled on the terms and regul lations hereinafter mentioned; and in case of no sum of money, nor the name of any underwriter, shall be subscribed thereon, then, in case it shall appear to the satisfaction of the said commissioners, that such policy hath not been underwritten or used for any other purpose, or in any other manner whatsoever, the said commissioners are to cancel the same, and to stamp any quantity of other vellum, &c. fit for the like uses, with stamps amounting to the like value, as may be required by the owner thereof, without taking any money or other consideration whatsoever: or, in case any sums of money, and the name of any underwriter, shall have been subscribed or underwritten on any such stamped vellum, &c. which shall be so brought to the said commissioners to be so cancelled within ten office-days after the date of the first of such subscriptions thereon; and in case it shall appear to the satisfaction of the said commissioners, that such sums

and names have been respectively underwritten on stamped vellum, &c. of a different denomination or value than is required by this act in respect of the sums so subscribed; and it shall be proved that the same was occasioned through inadvertence or mistake, or that the subscriptions thereon intended to have been obtained have not, from some just cause, been completed and if, in every such case, the party bringing the same shall produce another policy of assurance duly stamped, and actually made out for the same interest, risk, or adventure, with the policy so brought to be cancelled, then the said commissioners shall cancel such policies, and exchange them for others of the like value.—35 Geo. III. c. 63, and 39 & 40 Geo. III. c. 72, § 9.

In case any assurance shall have been made on any ship, that is to say, on the body, tackle, apparel, ordnance, munition, artillery, boat, and other furniture thereof; or upon the freight of any ship; or upon any goods, merchandises, or other effects, laden or to be laden on board of any ship or ships, (whether such ship or ships shall be specifically named in such policy or not,) and if it shall happen that any such ship shall not have proceeded upon the voyage assured; or that any goods, merchandises, or other effects, so assured as aforesaid, have not been shipped on board any ship or ships, whether specifically named in the policy or not; or in case the sum assured shall be found o exceed the interest of the assured on which the risk attached; and in case the separate interest of one person, or the joint interest of two or more persons, assured in such policy, shall fall short of the sum assured by the sum of £1000, or upwards, where the duty payable thereon shall be at the rate of 1s. 3d. per centum, or of £500, or upwards, when the duty payable thereon shall be at 2s. 6d. per centum; then, and in every such case, upon due proof to the satisfaction of the said commissioners, that any such ship hath not proceeded upon the voyage assured, or that any such goods, merchandises, or other effects, aforesaid, have not been shipped on board any ship or ships, whether specifically named or not, and that no risk hath, in either of such cases, attached, or on such due proof as aforesaid of the value of the interest, if any, assured in any such ship, freight, goods, merchandises, or other effects, as aforesaid, on which any risk has attached, and on the production of the policy whereby such assurance was made, and also on such due proof as aforesaid being made of the bond fide return of the premiums by the several underwriters or assurers on such policy on account only of such no risk, no interest, or short interest, as the case may be, or of the proportion of the premium so returned on any such account as aforesaid; the said commissioners are to make an allowance to the assured of the stamps on any such policies, in respect of the sums thereby assured, when the whole of the premiums shall have been returned on any such account as aforesaid, or of such part of the sums thereby assured as shall be found to exceed the interest of the assured or assureds in any such policy; and the said commissioners are to cancel any such policies, and to deliver other stamped papers or parchment of the value of the stamps so allowed as aforesaid.—35 Geo. III. c. 63, and 39 & 40 Geo. III. c. 72, § 11.

Every contract or agreement which shall be entered into for any assurance, in respect whereof any duty is by this act made payable, shall be engrossed, printed, or written, and shall be deemed and called A Policy of Assurance; and the premium or consideration, the

particular risk or advantage against, together with the names of the subscribers or underwriters, and sums assured, shall be respectively specified in such policy; and, in default thereof, every such assurance shall be null and void to all intents and purposes whatever.—35 Geo, III. c. 63, § 11.

No policy of assurance upon ship, or share therein, shall be made for longer than twelve calendar months.-35 Geo. III. c. 63, § 12.

Such alterations as may lawfully be made in the terms of any policy, duly stamped and underwritten, may still be made without requiring any additional stamp, so that such alteration be made before notice of the determination of the risk originally assured, and the original premium or consideration shall exceed the rate of 10s. per centum on the sum assured, and so that the thing assured shall remain the property of the same person or persons, and so that such alteration shall not prolong the term assured beyond the period allowed by this act, and so that no additional or further sum shall be assured by reason of such alteration.-35 Geo. III. c. 63, § 13.

No assurance made in Great Britain, in respect whereof any duty is payable, shall be available in law or equity, unless properly stamped; and it shall not be lawful to stamp any vellum, &c. with any stamp by virtue of this act, at any time after any such assurance shall be engrossed, printed, or written thereon, under any pretence whatever.→ 35 Geo. III. c. 63.*

Persons making assurances, &c. unless the contract be properly stamped; and brokers, &c. acting contrary to this act, to forfeit £500, Brokerage, &c. is not legally chargeable unless the assurance be properly stamped, &c.

Assurers, unless assurances be properly stamped, &c. to forfeit

£500.

One moiety of all penalties sued for in six months to belong to his Majesty, and the other moiety to the person who shall sue for the same. Penalties not sued for within six months may be recovered by his Majesty's attorney-general or advocate, and be paid to the commissioners of stamps, who may reward the informer.

Prosecutions for penalties incurred without intention of fraud, may be stopped by his Majesty's attorney-general or advocate.

2. THE CONSTRUCTION OF THE POLICY

In the construction of policies, two rules chiefly prevail, namely, to give effect to the intentions of the parties, and to the usage of trade, with respect to the particular voyages or risks to which the policy relates. Thus, with respect to intention collected from the covenant of the parties. By a charter-party, a ship was described to be of the burthen of 261 tons. The freighter covenanted to load a full and complete cargo. It was holden that the mere loading of goods equal in number of tons to the tonnage described in the charter-party, was not a performance of the covenant, according to the intention of the parties, to load "a full and complete cargo," but that the freighter was bound to put on board as much as the ship could carry with safety. Hunter v. Fry, 2 Barn. & Ald. 421.

In a case so early as in the time of James the Second, a policy of assurance was construed to run until the ship had ended and was dis

But see 9 Geo. IV. c. 49, at the end of this PART.