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the Hanover packet, which was lost within the time mentioned in the policy. The court held that this was an action of a peculiar sort; and was an exception out of the statute of the 19th Geo. II. c. 37, coming within the proviso in the third section (just quoted.) It is a mixed policy; partly a wager policy, partly an open one; and it is a valued policy, and fairly so without fraud or misrepresentation. Therefore the loss, having happened, the assured is entitled as for a total loss.

It has also been solemnly settled, that, upon a joint capture by the army and navy, the officers and crews of the ships, before condemnation, have an assurable interest, by virtue of the prize-act, which usually passes at the commencement of a war.-Le Cras v. Hughes, B. R. 22 Geo. III.

So, in a modern case, it had been holden, that the captors of ships seized by them as prize, have an assurable interest in them, in the voyage home, for the purpose of bringing them to adjudication in the admiralty.-Boehm v. Beil, 8 T. R. 154.

In a case, where a house in Spain, who were indebted to the plain tiffs, had consigned goods to Messrs. Dubois, and endorsed the bill of lading to them, with a letter annexed, directing them to hold a part of the said goods for the use of the plaintiffs: it was held, that the plaintiffs, although they had not ordered the goods, had yet an assurable interest, being creditors of the house in Spain.-Hill and another v. Secretan, 1 Bos. and Pull. 315.

In the construction of the act it has been holden, that all assurances, made by persons having no interest in the event about which they assure, or without reference to any property on board, are merely wagers, destructive of the true end for which this contract was introduced into the mercantile world; and therefore are to be considered as absolutely null and void.-Kent v. Bird, Cowp. 583.

Where a man assures £2000, and it turns out in proof that he has an interest to the value of a cable only, such an interest will never be allowed to operate so as to evade the statute. Indeed, wherever the court can see, upon the face of the policy, that it is merely a contract of gaming, where indemnity is not the object in view, they are bound to declare such policy void. - Lowry and another v. Bourdieu, Doug. 451.

The second section of the act in question, which allows of assurances being made on private ships of war, interest or no interest, seems sufficiently clear, and requires no explanation.

15. REASSURANCE, AND DOUBLE ASSURANCE.

Reassurance may be said to be a contract, which the first assurer enters into, in order to relieve himself from those risks which he has incautiously undertaken, by throwing them upon other underwriters, who are called reassurers.

The reassurer is wholly unconnected with the original owner of the property assured; and as there is no obligation between them originally, so none is raised by the subsequent act of the first underwriter.

Although such a contract seems perfectly fair and reasonable in itself; yet, the practice was so much abused, and turned to purposes so pernicious to a commercial nation, and so destructive of those very benefits it was originally intended to promote and encourage, that the

legislature interposed, and by a positive law, to cut off all opportunity of practising those frauds in future, which were become glaring and

enormous.

Accordingly, by the fourth section of the 19th Geo. II. c. 37, it is enacted, "that it should not be lawful to make reassurance, unless the assurer should be insolvent, become a bankrupt,* or die; in either of which cases, such assurer, his executors, administrators, or assigns, might make reassurance, to the amount before by him assured, provided it should be expressed in the policy to be reassurance."

This act is worded in such express terms, excluding every species of reassurance, except in the three instances of death, bankruptcy, or insolvency, that a doubt, as it would seem, could hardly be founded upon it. But as it was held that the first clause of the statute, pro hibiting assurances interest or no interest, did not extend to foreign ships: so it was argued that reassurances made here on ships of foreigners did not fall within the act. This point came on to be considered in the court of king's bench, in the year 1787, in the form of a special case, stating, that a reassurance was made by the defendant on a French vessel, first assured by a French underwriter at Marseilles, who was living, and who, at the time of subscribing the second policy, was solvent.

The court were of opinion that this policy of reassurance was void: and that every reassurance in this country, either by British subjects or foreigners, on British or foreign ships, is void by the statute, unless the first assurer be insolvent, become a bankrupt, or die.-Andrée v. Fletcher, 2 T. R. 161.

But, it seems, an agreement between two underwriters, that the subscription to a policy by one shall be considered as transferred to the other, is not a reassurance within the statute, unless the premium paid to the second underwriter be less than what the first received.Delver v. Barnes, 1 Taunt. 48.

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, by reason of his having made two assurances upon the same goods or the same ship. The first distinction between these two contracts is, that a reassurance is a contract made by the first underwriter, his executor, or assigns, to secure himself or his estate; a double assurance is entered into by the assured. A reassurance, except in the cases provided for by the statute, is absolutely void; a double assurance is not void; but still the assured shall recover only one satisfaction for his loss. Where a man has made a double assurance, he may recover his loss against which of the underwriters he pleases, but he can recover no more than the amount of his loss. It being thus settled, that the assured shall recover but one satisfaction, and that, in case of double assurance, he may fix upon which of the underwriters he will for the payment of his loss, it is a principle of natural justice, that the several assurers should all of them contribute in their several proportions, to satisfy that loss, against which they have all assured.

By the 19th Geo. II. c. 32, § 2, it is enacted that, when any obligor in a respondentia or bottomry bond, or any underwriter of a policy of assurance, become bankrupt before the loss of a ship or goods mentioned in such bonds or policies, the obligee of any such bond, or the assured in such policy, may, in cases of subsequent Joss, prove their claims under such commission of bankruptcy, and be entitled to dividends as other creditors.

Thus it has been ruled, and seems the course of practice, that, upon a double assurance, though the assured is not entitled to two satisfactions, yet, upon the first action, he may recover the whole sum assured, and may leave the defendant therein to recover a rateable satisfaction from the other assurers. Newby v. Reed, 1 Black R. 416.

Thus also it was determined in a subsequent case at Guildhall.— Rogers v. Davis, Sittings in Michaelmas vacation, 17 Geo. III. before Lord Mansfield.

Although a man, by making a double assurance, should not be allowed to recover a double satisfaction for the same loss, yet various persons may assure various interests on the same thing, and each to the whole value, (as the master for wages, the owner for freight, one person for goods, another person for bottomry,) and such a contract does not fall within the idea of a double assurance.-1 Burr. 496.

16. CHANGING THE SHIP.

Changing the ship, or, as it is commonly called, changing the bottom, will operate as a bar to the assured's recovering upon a policy of assurance against the underwriter. Except in some special cases of assurances upon ship or ships, or other words in the policy admitting extraordinary latitude; (see Le Mesurier v. Vaughan, 2 Smith, 492; and Lynch v. Hamilton, 3 Taunt. 37;) it is essentially requisite, to render a policy of assurance effectual, that the name of the ship, on which the risk was to be run, should be inserted. This being done, it follows, that the assured shall neither substitute another ship for that mentioned in the policy, before the voyage commences, nor, during the course of the voyage, remove the property assured to another ship, without consent of the underwriter, or without being impelled by a case of unavoidable necessity.

17. DEVIATION.

Deviation means a voluntary departure, without necessity, or any reasonable cause, from the regular and usual course of the specific voyage assured. Whenever a deviation of this kind takes place, the voyage is determined; and the underwriters are discharged from any responsibility. It is necessary to insert, in every policy of assurance, the place of the ship's departure, and also of her destination. Hence it is a condition, on the part of the assured, that the ship shall pursue the most direct course, of which the nature of things will admit, to arrive at the destined port. If this be not done, if there be no special agreement to allow the ship to go to certain places out of the usual track, or if there be no just cause assigned for such a deviation, the underwriter is no longer bound by his contract. Nor is it at all material, whether the loss be or be not an actual consequence of the deviation; for, the assurers are in no case answerable for a subsequent loss, in whatever place it happens, or to whatever cause it may be attributed. Neither does it make any difference, whether the assured was or was not consenting to the deviation.

The plaintiff was a shipper of goods in a vessel bound from Dartmouth to Liverpool. The ship sailed from Dartmouth and put into Looe; a place she must of necessity pass by in the course of the assured voyage. But, as she had no liberty given her by the policy to go into

Looe, and although no accident befell her in going to or coming out of Looe, (for she was lost after she got out to sea again,) yet Mr. Justice Yates held that this was a deviation, and a verdict was accordingly found for the underwriters.-For v. Black, Exeter Assizes, 1767, before Mr. Justice Yates.

In another case, an action was brought upon a policy upon goods and other merchandises, loaded on board the ship called the Charming Nancy, from Dunkirk to Leghorn. The ship came to Dover in her way to procure a Mediterranean pass, and was afterwards lost. Lord Mansfield was of opinion, that the calling at Dover was a deviation : and the plaintiff was nonsuited.-Townson v. Guyon, before Lord Mansfield.

It was held, by Lord Chief Justice Lee, that, if the master of a vessel put into a port not usual, or stay an unusual time, it is a deviation, and discharges the assurer.

It has also been held, that, even where there is a permission given to touch and stay at a place, that confers no privilege on the assured to break bulk, or to unload any part of the cargo.-Stitt v. Wardell, Mich. 1797.

But this strictness is now relaxed, In a subsequent case, Mr. Justice Lawrence seemed to question the authority of Stitt v. Wardell, and Mr. Justice Leblanc said, "That the reason why a liberty was sometimes expressly reserved for a ship to touch, stay, and trade, was, not because this was impliedly excluded in every policy in which no such liberty was reserved, but to justify the delay in trading; and when there was no delay, he could see no reason to imply a condition which the parties had not made."

In a case upon a policy of assurance on a ship at and from Fisherow to Gottenburg, and back to Leith and Cockenzie, it appeared that, in the homeward voyage, she went first to Cockenzie, which lay nearer to Gottenburg than Leith, and was stranded in the harbour of Cockenzie. The court were of opinion, that, unless there be some usage proved, or some special facts, to vary the general rule, the party assured must go to the several places mentioned in the policy, in the order in which they are named; and that, to depart from that course is a deviation.-Beatson v. Haworth, 6 T. R. 531.

So, where a ship was assured, " at and from Lisbon to a port in England, with liberty to call at any one port in Portugal for any purpose whatever." The ship sailed from Lisbon to Ferro, to complete her loading. Ferro being a port to the southward of Lisbon, and lying directly out of the course of the voyage to England, Lord Kenyon was of opinion that it was a deviation; as the liberty given must be restrained to mean some port lying in the fair course of the voyage. -Hogg v. Horner, Mich. T. 1797. It has even been holden that, where an insurance was effected on a ship to a particular port of destination, to which were two distinct courses, each of which had some advantages and some disadvantages, and it was usual to leave it to the judgment of the captain to select either: the depriving the captain of that election, without apprizing the underwriter, was a deviation from the common course, and avoided the policy.— Underwood v. Blake, 7 T. R. 162.

These principles being once established, it follows, as a necessary consequence, that, however short the time of deviation may be, if only for a single night, or even for an hour, the underwriter is equally discharged as if there had been a deviation for weeks or months;

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for the condition, being once broken, no subsequent act can ever make it good.

The ship George was bound from Cork to Jamaica, with a convoy, in the course of a war. The captain, in concert with two other vessels, took advantage of the night, and, being ships of force, cruised, and thereby deviated out of the direct course of their voyage, in hopes of meeting with a prize. Lord Camden clearly held, and a special jury of merchants, agreeably to his directions, determined that, from the moment the George deserted or deviated from the direct voyage to Jamaica, the policy was discharged.-Cock v. Townson, C. P. before Lord Camden.

In a modern case, however, it seemed to be the general opinion of Lord Mansfield and a special jury, and was sworn to be the usage by several witnesses, that, if a merchant ship carry letters of marque, she may chase an enemy, though she may not cruise, without being deemed guilty of a deviation.

On an assurance of the Mary, at and from London to Cork and the West Indies, the question was, whether a ship, having letters of marque, could chase an enemy's ship, without being said to have deviated. The facts were, that in the night the Mary had descried a Spanish sail; and, after chasing, lost sight of her six hours, till the morning, when they engaged. The Mary did not make a prize of the Spanish sail, but she proceeded on her voyage, and was afterwards captured. It was agreed on all hands, that a ship, in such circumstances, might not cruise; and several witnesses spoke to the usage and practice of ships, which carried letters of marque, chasing an enemy. It was admitted, on the part of the assurers, that, if an enemy came in the way, the ship must defend or engage; but contended, that, if the letter of marque lost sight of an enemy, then it was no longer chasing but cruising. Lord Mansfield left it upon the evidence, to the jury, who found for the plaintiffs; thereby deciding the question in the affirmative.-Jolly v. Walker, at Guildhall, Easter Vacation, 1781.

But, in a later case, the judges were unanimously of opinion, that, if the assured, without the knowledge of the underwriters, take out a letter of marque, (but without a certificate, which, by the prize-act, is necessary to its validity,) for the purpose of inducing the seamen to enter, and without any intention of cruising, this does not so essentially vary the risk as to vacate the policy.-Moss v. Byrom, 6 T. R. 379.

A voluntary deviation from the voyage assured vitiates a policy upon freight, as well as upon ships and goods. Thus on an assurance on freight of the ship Bethiah, at and from Bourdeaux to Virginia, it appearing that the goods were to be carried in the ship from Bourdeaux to St. Domingo, and that she was only to call at Norfolk, in Virginia, for orders; Lord Kenyon was of opinion, that the underwriters had a right to expect that the goods, upon which the freight was payable, were consigned to Virginia, and not to another place, and that the calling at Norfolk for orders was a deviation.-Murdock v. Potts, Sittings at Guildhall after Trinity, 1795.

This decision, however, seems to be overruled by Taylor v. Wilson, 15 East, 324, which decides that freight may be insured, as well as ship and goods, for part of a voyage only, and the underwriters need not be informed of the ship's ultimate destination.

If a ship have the liberty of visiting two or more places by the

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