I. and fo that fuch alteration fhall not prolong the term in- CHA P. fured beyond the period allowed by this act (fee fect. 12.) and fo that no additional or further fum fhall be infured by reafon or means of fuch alteration. By this fection, a penalty of 500l. is impofed both on Section 15. the perfons procuring, and the brokers effecting insurances ་ ་ ་ on policies not duly ftamped; and the latter can neither Section 16. demand their brokerage, nor the money expended for premiums; and by the 17th section, every underwriter fubfcribing fuch illegal policy is alfo liable to a like penalty of 5001. By the ordinances of France, and other maritime countries, all policies of infurance must be registered; but no fuch regulation prevails in England, either by the law, or in practice. [ 29 ] Ord. of France, 30 CHAP. Burr. 347. CHAPTER THE SECOND. A Of the Conftruction of the Policy. POLICY of infurance, being a contract of indem nity, and being only confidered as a fimple contract, must always be conftrued, as nearly as poffible, according to the intention of the contracting parties; and not acRoccus Not. 18. cording to the ftrict and literal meaning of the words. The mercantile law, in this refpect, is the fame in every part of the world; for from the fame premises, the found conclufions of reafon and juftice must ever be the fame. Thus as the benefit of the infured, and the advancement of trade, are the grear objects of infurance, policies are to be conftrued largely, in order to attain those ends: for it would be abfurd to fuppofe, that when the end is infured, the ordinary and ufual means of attaining it can poffibly be excluded; whatever, therefore, is done, by the mafter of the ship, in the x Burr. 348. ufual courfe, neceffarily, et ex justâ crufâ, although a lofs happen thereon, the underwriter fhall be anfwerable. Anonymous, Skinn. 243. But, in the construction of policies, no rule has been more frequently followed than the ufage of trade, with respect to the particular voyages or risks, to which the policy relates; and in the cafes about to be quoted in fupport of these principles, it will be found, that the learned judges have always called in the ufage of trade, as the ground, upon which the conftruction turns. In ftating the different cafes upon this fubject, as the point is nearly the fame in all, the order of time, in which they were determined, is that which will be purfued, in order to prevent confufion. The first to be mentioned is an anonymous cafe in the time of James the fecond; but it is from a reporter of very good authority. A policy of infurance fhall be conftrued to II. to run until the fhip fhall have ended, and be discharged of CHA P. her voyage; for arrival at the port, to which fhe was bound, is not a discharge till he is unloaded and it was fo adjudged by the whole court, upon a demurrer, : But although this conftruction may be perfectly right, where the policy is general from A. to B. yet if it contain the words ufually inferted" and till the ship shall have moored at anchor twenty-four hours in good fafety," the underwriter is not liable for any lofs, arifing from feizure after the has been twenty-four hours in port; though fuch feizure was in confequence of an act of barratry of the mafter during the voyage for, if it were extended beyond the time limited in the policy, it would be impoffible to lay down any fixed rule, and all would be uncertainty and confufion, 1 Term Re This was decided in an action on a policy of infurance on Lockyer and the fhip Hope from Hamburgh to London, fubfcribed by the others v. Offley, defendant for two hundred pounds at one guinea per cent. ports, p. 252. At the trial before Mr. Juftice Buller, at Guildhall, a verdict was found for the plaintiffs, subject to the opinion of the court, upon the following cafe: that the plaintiffs were interested in the ship to the amount of the fum insured. That in the course of the voyage, the mafter committed barratry by smuggling on his own account, by hovering and running brandy on fhore in cafks under fixty gallons. That on the first of September 1785, the fhip arrived in fafety at her moor ings in the river Thames, and remained there in fafety till the twenty-feventh of the faid month of September, when she was feized by the revenue officers for the fmuggling before ftated. That about three weeks after the feizure, the plaintiffs informed the underwriters thereof; and that they would hold them liable on the policy." That on the twentieth of October, the plaintiffs prefented a petition to the commissioners of his majesty's customs, in which they imputed all the blame (which was certainly the truth) to the captain, and praying that their veffel might be restored, on paying fomething to the feizing officer. The anfwer was, ❝ that II. CHAP." that the profecution must proceed, as the fhip had been guilty of a grofs violation of the laws, but that the own ers fhould be at liberty to compound, according to the "rules of the Exchequer." That the hip was appraised at the fum of three hundred and forty-five pounds, and by [32] the courfe of the court of Exchequer, the fhip would have been restored to the plaintiffs, upon the payment of two hundred and thirty pounds, befides cofts and charges, which would altogether haye amounted to three hundred and twen ty-nine pounds nine fhillings and feyen-pence. That in November, a notice was indorfed on the policy, binding the underwriters for all cofts and charges expended about the recov ery of the fhip. That this was fhewn to the underwriters, who refufed to fubfcribe it. This cafe was fully argued, in the absence of Lord Manffield, and the court having taken time to deliberate, Mr. Juftice Willes pronounced their unanimous opinion. "There is no doubt in this cafe, but that the mafter was guilty of barratry, by smuggling on his own account, "without the privity of his owners. Many definitions of barratry are to be found in the books, but perhaps this "general one may comprehend almost all the cafes: barra " " 66 try is every fpecies of fraud or knavery in the master of "the fhip, by which the freighters or owners are injured; "and in this light a criminal or wilful deviation is barratry, "if it be without their confent. The general queftion here is, whether, as the lofs, which was occafioned by the bar ratry of the master, did not happen during the continuance of the voyage, the infurers are liable? I must own this appears to me to be a novel queftion, and not to have been "decided by any former determinations. Difficulties occur on both fides in laying down any rule. The first thing to "be obferved is, that the policy, by the terms of it, is an un"dertaking for a limited time, during the voyage from Ham"burgh to London, till the fhip has moored twenty-four hours "in fafety; and the fhip was not actually seized till near a "month afterwards. But it has been faid that under the or 24th II. 24th of George the third, chap. 47. and the excife laws, the CHA P. "forfeiture attaches the moment the act is done, and that "the barratry was committed during the voyage. It may be "fo as to fome purposes, as to prevent intermediate altera❝tions or incumbrances; but I think the actual property is not altered till after the feizure, though it may be before " condemnation. I will put this cafe; fuppofe, before the "seizure of the ship, she had gone another voyage, and on "her return had been feized, would the crown be entitled to an account of her earnings, after deducting the expen- [33] "ses of the outfit? furely not. Till the feizure, it was not "certain that the officers of the crown knew of the illicit trade carried on by the mafter, or whether they would "take advantage of the forfeiture. It would be a dange "rous doctrine to lay down, that the infurer fhould, in all "cafes, be liable to remote confequential damages. This "has been compared to a death's wound received during the "voyage, which fubjected the ship to a fubfequent lofs. To "this point the cafe of Meretony v. Dunlop, feems very ma"terial. That was an insurance on a fhip for fix months; Easter 23. " and three days before the expiration of the time, the re Geo. III, B. R. "ceived her death's wound, but by pumping, was kept afloat, "till three days after the time: There the verdict, under the "direction of Lord Mansfield, was given for the insurer; and "it was afterwards confirmed by the court. I will put "another cafe: fuppofe an infurance upon a man's life for " a year, and fome fhort time before the expiration of the "term, he receives a mortal wound, of which he dies after "the year, the insurer would not be liable. The cafe of Vide poft, E. 5. "Vallejo v. Wheeler was cited for the plaintiff, but that does "not conclude, this question, for there the fhip was loft "during the voyage. It was alfo argued, that this ship, even "in the hands of a fair purchaser, would be liable to the "forfeiture. I do not know that it ever has been fo "decided; it may depend on circumstances, such as length " of poffeffion, laches in feizing, or other matters. But fuppofe the law to be fo, it does not follow from thence, "that though the ship is always liable to confifcation, that the " "infurer |