To which of several policies loss is to

be appropriated.

In England.

Henchman v.
Offley.

on The Red Gauntlet, under the open policy, would be sent by next mail, and he immediately desired the defendants to apply the existing policy to The Red Gauntlet. This was refused by the company, but the Court held, to the contrary, that the plaintiff was entitled to have the policy so applied.1 It is always expected, and it may be made an express condition that the assured shall declare his interest at the earliest possible opportunity.2

There is occasionally a very nice question as to the appropriation of the loss to a particular policy when there are two or more policies of this description open. In this country it has been established by the following decisions, that the assured has a right to declare on any of the policies a loss on board any ship he pleases that comes within the terms of such policy.

A merchant in India caused two insurances to be effected by his agent in London, one for 60007. on goods "on board any ship or ships which should sail from Bengal to London, between the 1st November, A.D. 1779, and the 1st of July, 1780;" the other on goods "on board any ship or ships which should sail [on the same voyage] between 1st February, and 31st December, 1780." He loaded goods to the amount of 48897. on board The General Barker, and to the amount of 45007. on board The Ganges, and entered a declaration before Sir Elijah Impey, then Chief Justice in Bengal, that he had shipped by The General Barker, 48891. of the risk intended to be covered by the 60007. policy. Both ships sailed within the time mentioned in the first policy. The Ganges arrived safe, but The General Barker was lost. The plaintiff claimed a total loss under the 60007. policy, which, under these circumstances, he contended he had a right to apply to The General Barker. Lord Mansfield at the trial, and afterwards in Banc, held that he had a right so to apply

1 Gledstanes v. Roy. Exch. Ass. Co., 34 L. J. (Q. B.) 30.

2 See Weskett, 520; 1 Phillips, no. 438.

3 Lord Mansfield overruled an objection taken at the trial to the admissibility of this declaration in evidence, and allowed it to be read.

it, and he recovered accordingly 48897., the value of the goods shipped on board The General Barker.1

Freeland and Rigby, a mercantile house at St. Vincent, Kewley v. Ryan. directed the plaintiffs, their Liverpool correspondents, to get 12607. insured on cotton by The Elizabeth from Granada to London; and 13007. on other cotton, by some other ship that would sail by the first convoy. This they did, and the 13007. on goods by ship or ships was insured, 7007. in Liverpool and 6007. in London. The 7007. policy contained a warranty to sail on or before the 1st August, 1793, and no exception of the goods on board The Elizabeth. The Elizabeth arrived safe in Liverpool: The Heart of Oak, by which the second cargo turned out to have been shipped, was totally lost on the voyage; both ships having sailed before the 1st of August, the time warranted for sailing in the 7007. policy.2 plaintiff's claim for a total loss on this policy was resisted, mainly on the ground that a ship, answering the description and having on board property of Freeland and Rigby, to the amount insured, had arrived, and had satisfied this policy. The Court, however, held, that the assured had a right to apply such an insurance to whatever ship he thought proper within the terms of it, and was, therefore, under the circumstances, entitled to recover the whole sum therein insured.*

The

In France, if the assured has effected an insurance to a In France. certain amount in gross "on goods on board ship or ships," and afterwards declares the names of the ships on board which his goods are shipped, and the insurer does not specify the precise sums which he means to underwrite on each ship, the assured may distribute the gross sum in what proportions he pleases among the different ships in case of loss of any of them, notwithstanding the value of the cargoes by those ships which have arrived exceed the whole amount of the

1 Henchman v. Offley, 2 H. Bl. 345, note.

22 H. Bl. 346. Mr. Marshall omits this circumstance, Ins. 168.

3 The other ground was as to the

legality of insurances on ship or ships,
as to which, however, the Court en-
tertained no doubt.

Kewley v. Ryan, 2 H. Bl. 343;
1 Marshall, Ins. 168.

To change the ship

invalidates the policy,

unless it be under consent

insurance.

On the contrary, if the underwriter had specified the amount insured by him on each, he would have been liable for that in each case respectively, and no more.1

It is an implied condition of the policy that the ship named therein should not, after the commencement of the risk, be changed without necessity or the consent of the underwriters; for any unnecessary or unsanctioned change of the ship produces an alteration of the risk underwritten, and, therefore, exempts them from liability.2

This holds good though the substituted ship be as good or better than that originally named in the policy. On whichever side the advantage be, whether in favour of the original ship, or of that which is substituted, and although both ships perish on the voyage, the underwriter is, nevertheless, discharged from all liability, for the policy never attached upon the goods on board the substituted ship.1

Thus, if the underwriter has agreed to insure three several parcels of goods, each of the value of 10007., one on board The St. Joseph, another on board The Triton, and a third on board The Syren, making together 30007., but the merchant afterwards loads these parcels all on board The St. Joseph, the underwriter is liable only on the policy on goods by The St. Joseph, to the extent of 10007. and no more; and as to the remaining 20007. he is discharged, although all the three ships have equally perished in the course of the voyage.5

If, however, the underwriters consent to the change of or necessity. ship, or, if in course of the voyage the ship be so disabled as

11 Emerigon, c. vi. s. 5, p. 174; and Boulay-Paty's Commentary, ibid. 178; see also Code de Commerce, art. 361; and 4 Boulay-Paty, Droit Mar. 130-136.

2 Upon this subject, generally, consult Emerigon (c. xii. s. 16, vol. i. pp. 419-426), who discusses it with his usual masterly display of research

and reasoning; see also Pothier Traité d' Assurance, nos. 68, 69, 70, 71.

31 Emerigon, c. xii. s. 16, p. 420. Pothier, no. 68, p. 111, par Estrangin; 1 Emerigon, 421.

5 Pothier, Traité d'Assurance, no. 68; Code de Commerce, art. 361; 4 Boulay-Paty, Droit Mar. 132.

to be incapable, by any means at the master's disposal, of being repaired at all, or in time to take on the cargo, and the master, as agent for all concerned, procure another ship, in which to forward the cargo to its port of destination; in such case, the change of ship does not discharge the underwriters on goods, freight, or profits, from the liability for loss on the subjects insured, though the loss occur subsequently to the change of ship.

We shall proceed now to consider the duties of the master, and to discuss those cases of necessity which give him the right, if they do not impose upon him the duty, of forwarding the goods in another ship.

It is not intended, in this place, to enter at any length Of the master. into those general duties and obligations of the master, in regard to the conduct of the ship, which more properly form part of a professed treatise on shipping; nothing more is proposed than to notice such points only, in respect of the master, as have a bearing more or less direct on the subject of sea insurance; and to this end we will consider-1. The naming of the master in the policy, and subsequently changing him; 2. His power, in a port of distress, of hypothecating the cargo, or selling part of it, in order to repair the ship; 3. His power, in certain cases, to sell the ship or the whole cargo; 4. His power, in case the first ship is disabled, of sending on the cargo in another; and 5. The relation in which he stands to the assured and to the underwriter in case of abandonment.

After the blank left in our common printed forms of policy for the name of the master come the following words: -"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."

1 See Maclachlan on Shipping, cc. iv. and v.; De Cuadra v. Swann, 16 C. B., N. S. 772.

Naming the

master in the policy.

What change vitiates the

policy.

From this clause it is abundantly evident, that it is no implied condition in our English policies either that the master should be correctly named, or that the same master should continue on board throughout the voyage.

At the same time, it is

The law is the same in France. the law of France, as it is of England, that in case a change be made, it be not such a change as would increase the risk of the underwriters, e.g. by substituting in time of war a belligerent instead of a neutral as master.2

But although a change of the master may be made without the consent of the underwriters, and before the commencement of the voyage, it is incumbent on the assured to make it in perfect good faith, and to provide a substitute of competent skill.3 If the substitution can be shown to have been effected for any fraudulent purpose, it will, of course, vitiate the policy.*

Suppose that a British ship sails with a certificated master and mates, and immediately she is outside the port a relative of the owner who has no certificate, suppose for no other reason than that he is under age, takes the command, is the policy valid, although the infant be not named master in it? And even though he be named in it, is the ship seaworthy under command of an uncertificated master? In both cases it is with the privity of the owners. In the first case there seems to be a legal fraud upon the underwriters, which vitiates the contract. The second case appears to be determined in principle by the decision in Farmer v. Legg, where the policy was held void because the ship, when employed in the slave trade, was under the command of

5

11 Emerigon, c. vii. ss. 1, 2, 3, pp. 184-190.

21 Emerigon, p. 187; BoulayPaty, in his Comment. ibid. 188, agrees with Emerigon in this construction of the clause.

3 See Walden v. Firemen's Ins. Co., 12 Johnson's R. 138; 3 Kent, Com. 257, note.

Boulay-Paty on 1 Emerigon, c. vii. s. 2, p. 189. See the Morocco Land and Trading Co. (Limited) v. Fry, 11 L. T., N. S. 618; 11 Jur., N. S. 76, coram Stuart, V.-C.

5 See The Morocco Land and Trading Co. v. Fry, coram Stuart, V.-C., 11 L. T., N. S. 618; 11 Jur., N. S.

76.