Formerly in this country. In the United Of same date contracts are responsible for the surplus, in the order of the date of their respective signatures.”1 So in this country it was once pleaded, and "proved by all the exchange" to be the custom of merchants, "that where a policy is subscribed by a number of underwriters, and the goods are not equal in value to the sums subscribed (taken together), the underwriters, in case of loss, shall be liable in the order in which they subscribe, and the remaining underwriters shall be exonerated from all liability, and return the premium, deducting per cent."2 The common law rule in the United States is that laid down by Lord Mansfield; but the law, as it anciently prevailed in England, and is now established in France, is deemed by the American merchants so preferable, in point of simplicity and convenience, that clauses are very generally introduced into their policies, to prevent the rule of contribution, and to make the insurers responsible according to the order of their subscriptions in point of date.3 4 In France, and when this rule has been adopted, in the cies different. United States also, if the second policy is dated on the same day as the first, inquiry may be made as to which of the two was actually first effected in point of time, and that which was so will alone bear the loss. In France, however, this does not extend to different subscriptions of the same date to the same policy; for in that case they make but one contract and the whole body of the underwriters, in case the sum insured in the policy exceeds the value at risk, 1 Code de Commerce, art. 359. 3 The clause to effect this purpose In the first policy it runs thus: "In case of any subsequent insurance, the insurers shall, nevertheless, be answerable for the full extent of the sum subscribed by him, without right to claim contribution from subsequent assurers." 3 Kent, Com. 280, 281. 44 Boulay-Paty, Droit Mar. 122, 123; Brown v. Hartford Ins. Co., 3 Day's Rep. 58; Potter v. Marine Ins. Co., 2 Mason's Rep. 475, cited in 3 Kent, Com. 281. contribute rateably to the loss, and return a rateable share of premium for the excess.1 If the subsequent insurance be made with the fraudulent intent on the part of the assured to recover more than an indemnity, and this fraudulent intent be proved, the law of France, and that of this country, it is apprehended, will be found to be the same, is, that he should pay the whole of the premium on the second policy, and recover nothing under it. Certainly, if the premium were already paid on the second policy, it could not in an English Court be recovered back. If the underwriter and the assured are both aware, at the time of effecting the second policy, that the whole amount of interest has already been fully covered by the first, this, by the French law, is a mere wager and void, and the principle cum utriusque turpitudo versatur cessat repetitio applies,—the assured recovers nothing on such policy; and if the premium is paid, the assured cannot demand a return; if not paid, the underwriter cannot claim it.3 return of insurance. It has been laid down by Mr. Marshall, as following from Rateable Lord Mansfield's rule, that where by several policies made premium in without fraud the total sum insured exceeds the whole value case of overat risk, and the risk attaches the same day on all, then "all the underwriters on the several policies would be equally bound to make a return of premium for the sum insured above the value of the effects in proportion to their respective subscriptions."4 But if two sets of policies of different date are effected on the same property, and the entire risk attaches on the earlier whilst the latter are not yet executed, although the amount insured in the prior set is not equal to the value at risk, but the aggregate sum insured in the two exceeds it, 14 Boulay-Paty, Droit Mar. 116, 117. 2 If he sues on the second policy hemay in France be proceeded against criminally; see the general French law on the subject of fraudulent overinsurance, 1 Emerigon, c. ix. s. 2, pp. 270-272, and the commentary of 34 Boulay-Paty, Droit Mar. 114. Irving v. Morgan v. the underwriters on the later in point of date shall alone be called on for a rateable return of premium.1 Where a double insurance has thus been effected in two or more valued policies, it has been a question whether the valuation in one policy is of any effect in limiting the amount to be recovered under the other. We have seen that it operates no such effect. The valuation in a policy is binding on the parties to it, but the sum recovered under any other policy, valued or open on the same interest and risk, goes in reduction of the amount recoverable under the policy in suit. So that if he have already recovered a sum equal to the amount of the valuation in the policy being sued on, he takes nothing by his action.2 Therefore, where 17007. was insured on a ship in one policy, in which she was valued at 30007., and afterwards a further sum of 20007. on the same ship in a second policy, in which she was also valued at 30007.: Lord Tenterden would not permit the assured to recover more than 30007. on both policies together, although it was proved that the value of the ship exceeded 37001., the aggregate of the sums insured in both.3 So where a bankrupt had effected one policy on a share of a ship, the share valued at 25007., and the official assignee another policy on the same share with the same underwriters, valued also at the same sum, a plea alleging this, averring that the risk, interest, and loss under the two policies were the same, and that the 25007. had been paid on the second policy, was held a good plea in discharge to an action brought by the assignees of the bankrupt on the first policy.+ 1 Fisk v. Masterman, 8 M. & W. 3 Irving v. Richardson, 1 Mood. & Rob. 158; see also S. C. in 2 B. & Ad. 193. Morgan v. Price, 4 Exch. 61; S. C. 19 L. J. (Ex.) 201. THE ship, never absent from a marine policy of insurance, Of the ship. has already engaged attention in a previous chapter as one of the subjects of such a policy. We are now to consider it as the depôt, vehicle, or instrument, in relation to other subjects of insurance while in port, or while in the course this. of transit by water from port to port. In this view, its Naming the ship in the importance in modern commerce cannot be exaggerated. policy. But we are not speaking of ships in general. A policy at one period of its existence or another is ever specific and definite as to the ship or the ships involved in the contract. By far the more important reason for this definite speci- Reason for fication of the vessel lies in this, that it is thereby the means of specifically identifying the subject of the particular insurance. As merchants in buying and selling distinguish the goods about which they are bargaining from all other similar goods, say, by the warehouse that contains them, the assured and the underwriter take the same easy method of pointing out the subject of the risk about which they are contracting. The master's name is also added as a further means of particularly designating the cargo, by thus specifically distinguishing the ship in question from all other ships of the same name and build. Accuracy, therefore, as to both is so material to the contract, that after all is executed in due form, it may turn out to be no contract whatever, merely because error herein having misled the mind of assured and underwriter each to a different subject, has thereby prevented agreement between them. But as it is only for the purpose of identification that such accuracy is important, misdescription by name, if it be not the occasion of error as to the subject designated, does not invalidate the policy. This is a general principle of law; nil facit error nominis cum de corpore constat. Accordingly, in our common policies, after the names of the ship and master, come the words, For by whatsoever other name or names the same ship, or the master thereof, is or shall be named or called." The following cases, although some of them are alio intuitu, are applicable to show the degree of accuracy practically required on this subject. An insurance on ship was effected as on a ship called "The Leopard;" it appeared that the name of the ship was in fact The Leonard, and that she had never been called The Leopard; it being proved, however, that the ship lost was the same that the underwriters intended to insure, the Court held that the variance did not affect the validity of the policy.2 An American ship called The President was described in the policy as "the good ship called The American ship President;"" but as it clearly appeared that the error was a blunder of the broker's clerk, and that the ship lost was really that which the underwriters meant to insure, the error was held immaterial.3 And the decision of the Court was the same in another case, where a ship really called by the 1 See 1 Emerigon, c. vi. s. 2, p. 160; "Error nominis alicujus navis non attenditur, quando ex aliis circumstantiis constat de navis identitate." 2 Hall v. Molineaux, before Lee, C. J., 17th Dec. 1744, cited in 6 East, 385. 3 Le Mesurier v. Vaughan, 6 East, 382.. |