Successive losses. Suing and labouring clause. Right of subrogation. specified percentage, a general average loss cannot be added to a particular average loss to make up the specified percentage. (4.) For the purpose of ascertaining whether the specified percentage has been reached, regard shall be had only to the actual loss suffered by the subject-matter insured. Particular charges and the expenses of and incidental to ascertaining and proving the loss must be excluded. [6 Edw. 7, c. 41, s. 76.] 79. (1.) Unless the policy otherwise provides and subject to the provisions of this Act, the insurer is liable for successive losses, even though the total amount of such losses may exceed the sum insured. (2.) Where, under the same policy, a partial loss which has not been repaired or otherwise made good is followed by a total loss, the assured can only recover in respect of the total loss: Provided that nothing in this section shall affect the liability of the insurer under the suing and labouring clause. [6 Edw. 7, c. 41, s. 77.] 80. (1.) Where the policy contains a suing and labouring clause, the engagement thereby entered into is deemed to be supplementary to the contract of insurance, and the assured may recover from the insurer any expenses properly incurred pursuant to the clause, notwithstanding that the insurer may have paid for a total loss, or that the subject-matter may have been warranted free from particular average, either wholly or under a certain percentage. (2.) General average losses and contributions and salvage charges as defined by this Act are not recoverable under the suing and labouring clause. (3.) Expenses incurred for the purpose of averting or diminishing any loss not covered by the policy are not recoverable under the suing and labouring clause. (4.) It is the duty of the assured and his agents in all cases to take such measures as may be reasonable for the purpose of averting or minimizing a loss. [6 Edw. 7, c. 41, s. 78.] Rights of Insurer on Payment. 81. (1.) Where the insurer pays for a total loss, either of the whole or, in the case of goods, of any apportionable part of the subject-matter insured, he thereupon becomes entitled to take over the interest of the assured in whatever may remain of the subjectmatter so paid for, and he is thereby subrogated to all the rights and remedies of the assured in and in respect of that subject-matter as from the time of the casualty causing the loss. (2.) Subject to the foregoing provisions, where the insurer pays for a partial loss, he acquires no title to the subject-matter insured, or such part of it as may remain, but he is thereupon subrogated to all rights and remedies of the assured in and in respect of the subject-matter insured as from the time of the casualty causing the loss, in so far as the assured has been indemnified, according to this Act, by such payment for the loss. [6 Edw. 7, c. 41, s. 79.] contribution. 82. (1.) Where the assured is overinsured by double insurance, Right of each insurer is bound, as between himself and the other insurers, to contribute rateably to the loss in proportion to the amount for which he is liable under his contract. (2.) If any insurer pays more than his proportion of the loss, he is entitled to maintain an action for contribution against the other insurers, and is entitled to the like remedies as a surety who has paid more than his proportion of the debt. [6 Edw. 7, c. 41, s. 80.] underinsurance. 83. Where the assured is insured for an amount less than the Effect of insurable value or, in the case of a valued policy, for an amount less than the policy valuation, he is deemed to be his own insurer in respect of the uninsured balance. [6 Edw. 7, c. 41, s. 81.] Return of Premium. 84. Where the premium, or a proportionate part thereof, is by Enforcement this Act declared to be returnable : (a.) If already paid, it may be recovered by the assured from the insurer; and (b.) If unpaid, it may be retained by the assured or his agent. [6 Edw. 7, c. 41, s. 82.] of return. agreement. 85. Where the policy contains a stipulation for the return of the Return by premium, or a proportionate part thereof, on the happening of a certain event, and that event happens, the premium, or, as the case may be, the proportionate part thereof, is thereupon returnable to the assured. [6 Edw. 7, c. 41, s. 83.] of consideration. 86. (1.) Where the consideration for the payment of the premium Return for failure totally fails, and there has been no fraud or illegality on the part of the assured or his agents, the premium is thereupon returnable to the assured. (2.) Where the consideration for the payment of the premium is apportionable and there is a total failure of any apportionable part of the consideration, a proportionate part of the premium is, under the like conditions, thereupon returnable to the assured. (3.) In particular:— (a.) Where the policy is void, or is avoided by the insurer as Modification of Act in case of mutual insurance. Ratification by assured. (b.) Where the subject-matter insured, or part thereof, has never been imperilled, the premium, or, as the case may be, a proportionate part thereof, is returnable: Provided that where the subject-matter has been insured "lost or not lost" and has arrived in safety at the time when the contract is concluded, the premium is not returnable unless at such time the insurer knew of the safe arrival: (c.) Where the assured has no insurable interest throughout the currency of the risk, the premium is returnable, provided that this rule does not apply to a policy effected by way of gaming or wagering: (d.) Where the assured has a defeasible interest which is terminated during the currency of the risk, the premium is not returnable: (e.) Where the assured has overinsured under an unvalued policy, a proportionate part of the premium is returnable: (f.) Subject to the foregoing provisions, where the assured has overinsured by double insurance, a proportionate part of the several premiums is returnable: Provided that, if the policies are effected at different times, and any earlier policy has at any time borne the entire risk, or if a claim has been paid on the policy in respect of the full sum insured thereby, no premium is returnable in respect of that policy, and when the double insurance is effected knowingly by the assured no premium is returnable. [6 Edw. 7, c. 41, s. 84.] Mutual Insurance. 87. (1.) Where two or more persons mutually agree to insure each other against marine losses there is said to be a mutual insurance. (2.) The provisions of this Act relating to the premium do not apply to mutual insurance, but a guarantee, or such other arrangement as may be agreed upon, may be substituted for the premium. (3.) The provisions of this Act, in so far as they may be modified by the agreement of the parties, may in the case of mutual insurance be modified by the terms of the policies issued by the association or by the rules and regulations of the association. (4.) Subject to the exceptions mentioned in this section, the provisions of this Act apply to a mutual insurance. [6 Edw. 7, c. 41, s. 85.] Supplemental. 88. Where a contract of marine insurance is in good faith effected by one person on behalf of another, the person on whose behalf it is effected may ratify the contract even after he is aware of a loss. [6 Edw. 7, c. 41, s. 86.] varied by agree 89. (1.) Where any right, duty, or liability would arise under Implied obligations a contract of marine insurance by implication of law, it may be ment or usage. negatived or varied by express agreement, or by usage, if the usage be such as to bind both parties to the contract. (2.) The provisions of this section extend to any right, duty, or liability declared by this Act which may be lawfully modified by agreement. [6 Edw. 7, c. 41, s. 87.] etc., a question of 90. Where by this Act any reference is made to reasonable time, Reasonable time, reasonable premium, or reasonable diligence, the question what is fact. reasonable is a question of fact. [6 Edw. 7, c. 41, s. 88.] law saved. 91. The rules of the common law, including the law merchant, Rules of common save in so far as they are inconsistent with the express provisions of this Act, shall continue to apply to contracts of marine insurance. [6 Edw. 7, c. 41, s. 91 (2).] 92. The "Marine Insurance Act," being chapter 118 of the Repeal. "Revised Statutes of British Columbia, 1924," is hereby repealed. 93. This Act shall come into force on the first day of March, 1926. Commencement of Act. Be it known that SCHEDULE. FORM OF POLICY. as well in own name as for and in the Lloyd's S.G. policy. name and names of all and every other person or persons to whom the same doth, may, or shall appertain, in part or in all doth make assurance and cause and them, and every of them, to be insured lost or not lost, at and from Upon any kind of goods and merchandises, and also upon the body, tackle, apparel, ordnance, munition, artillery, boat, and other furniture, of and in the good ship or vessel called the whereof is master under God, for this present voyage, or whosoever else shall go for master in the said ship, or by whatsoever other name or names the said ship, or the master thereof, is or shall be named or called; beginning the adventure upon the said goods and merchandises from the loading thereof aboard the said ship, upon the said ship, etc., and so shall continue and endure, during her abode there, upon the said ship, etc. And further, until the said ship, with all her ordnance, tackle, apparel, etc., and goods and merchandises whatsoever shall be arrived at upon the said ship, etc., until she hath moored at anchor twenty-four hours in good safety; and upon the goods and merchandises, until the same be there discharged and safely landed. And it shall be lawful for the said ship, etc., in this voyage, to proceed and sail to and touch and stay at any ports or places whatsoever without prejudice to this insurance. The said ship, etc., goods and merchandises, etc., for so much as concerns the assured by agreement between the assured and assurers in this policy, are and shall be valued at [Sue and labour clause.] [Waiver clause.] [Memorandum.] Lost or not lost. From. At and from. [Ship.] [Freight.] Touching the adventures and perils which we, the assurers, are contented to bear and do take upon us in this voyage: they are of the seas, 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 and mariners, and of all other perils, losses, and misfortunes, that have or shall come to the hurt, detriment, or damage of the said goods and merchandises, and ship, etc., or any part thereof. And in case of any loss or misfortune it shall be lawful to the assured, their factors, servants, and assigns, to sue, labour, and travel for, in and about the defence, safeguards, and recovery of the said goods and merchandises, and ship, etc., or any part thereof, without prejudice to this insurance; to the charges whereof we, the assurers, will contribute each one according to the rate and quantity of his sum herein assured. And it is especially declared and agreed that no acts of the insurer or insured in recovering, saving, or preserving the property insured shall be considered as a waiver, or acceptance of abandonment. And it is agreed by us, the insurers, that this writing or policy of assurance shall be of as much force and effect as the surest writing or policy of assurance heretofore made in Lombard Street, or in the Royal Exchange, or elsewhere in London. And so we, the assurers, are contented, and do hereby promise and bind ourselves, each one for his own part, our heirs, executors, and goods to the assured, their executors, administrators, and assigns, for the true performance of the premises, confessing ourselves paid the consideration due unto us for this assurance by the assured, at and after the rate of In witness whereof we, the assurers, have subscribed our names and sums assured in N.B.-Corn, fish, salt, fruit, flour, and seed are warranted free from average, unless general, or the ship be stranded; sugar, tobacco, hemp, flax, hides and skins are warranted free from average, under five pounds per cent.; and all other goods, also the ship and freight, are warranted free from average, under three pounds per cent., unless general, or the ship be stranded. Rules for Construction of Policy. The following are the rules referred to by this Act for the construction of a policy in the above or other like form, where the context does not otherwise require: 1. Where the subject-matter is insured "lost or not lost" and the loss has occurred before the contract is concluded, the risk attaches, unless at such time the assured was aware of the loss, and the insurer was not. 2. Where the subject-matter is insured "from" a particular place, the risk does not attach until the ship starts on the voyage insured. 3. (a.) Where a ship is insured "at and from" a particular place, and she is at that place in good safety when the contract is concluded, the risk attaches immediately. (b.) If she be not at that place when the contract is concluded, the risk attaches as soon as she arrives there in good safety, and, unless the policy otherwise provides, it is immaterial that she is covered by another policy for a specified time after arrival. (c.) Where chartered freight is insured "at and from" a particular place, and the ship is at that place in good safety when the contract is concluded, the risk attaches immediately. If she be not there when the contract is concluded, the risk attaches as soon as she arrives there in good safety. (d.) Where freight, other than chartered freight, is payable without special conditions and is insured "at and from" a particular place, the risk attaches pro rata as the goods or merchandise are shipped; provided that if there be cargo in readiness which belongs to the ship-owner, or which some other person |