Concealment of facts that risk. train oil was to be shipped at St. John's, Newfoundland, on board The Elizabeth, wrote on the 27th of January to his brokers in London to effect an insurance, telling them "that he had advices from St. John's of the 27th of December, of the train oil being shipped for him on board The Elizabeth, to sail the end of the month." The real facts were:-1st. That he had received no advices of that date from St. John's, but had been merely told, that intelligence from St. John's down to the 27th had come to hand, which made no mention of the sailing of The Elizabeth; and 2nd. That before giving the order to insure, he had received two letters from St. John's, both dated the 24th of December, but the second not sent till the 30th, in the first of which his correspondents stated that The Elizabeth was to sail on the 25th, that she was a new vessel, that he might endeavour to save the insurance by giving three or four days, according to the state of the weather in England; and in the second they said, "You can allow her from sixteen to twenty days: You can run a reasonable risk to save the insurance, but all will depend on the state of the weather." The insurance having been effected on the 27th January, solely on the letter of instructions sent to the broker, the Court were clearly of opinion, that these facts showed both a positive misstatement and a material concealment, either of them sufficient to avoid the policy.1 In a time of war, any circumstance, within the knowledge aggravate the of the assured, and not equally within the knowledge of the underwriter, which affects the national character of the subject insured, and therefore exposes it to capture or detention, must be disclosed to the underwriters. Yet there may be facts of this nature most material to the risk, and not within the knowledge of the assured, or his means of information. Thus a ship, warranted Portuguese, 1 Mackintosh v. Marshall, 11 M. & W. 116. Walter. was taken by a French privateer, and condemned because Mayne v. she had an English supercargo on board, on the ground of a recent French ordinance declaring all neutral ships liable to capture if the supercargo was the subject of a state at war with France; Lord Mansfield held that, as neither the assured nor the underwriters appeared to have known anything of this ordinance, the former was not guilty of a material concealment in not disclosing the fact of the supercargo being English.1 His Lordship, however, was of opinion that, though this ordinance was contrary to the law of nations, yet, if known to the assured, it would have been a material concealment not to have disclosed the fact of his non-compliance with it; and if, on the other hand, the underwriters had known of it, they ought to have inquired who was, or was to be, supercargo.2 Although a knowledge of the political state of the world, Private inforof the allegiance of particular countries, of their standing mation of new regulations. mercantile regulations, of the risk and embarrassment affecting the course of trade contemplated by the insurance, must all necessarily be imputed to the underwriter, and therefore need not be disclosed by the assured: yet it has been held in the United States, and apparently on very good grounds, that the new or shifting regulations of foreign states, by which the property is exposed to seizure, if privately known to the assured, ought to be disclosed by him, for they cannot be presumed to be necessarily within the knowledge of the underwriter.3 would expose All facts lying peculiarly within the knowledge of the Facts which assured, which may expose the property to belligerent risks, to capture. ought to be disclosed to the underwriters. Thus, it has been 1 Mayne v. Walter, 1 Park, Ins. 431; 1 Marshall, Ins. 402, 471. 21 Marshall, Ins. 402, 471; see also Barzillay v. Lewis, 1 Marshall, Ins. 402, 404; and Marshall v. Union Ins. Co., Condy's Marshall, 473. Hoyt v. Gilman, 8 Mass. Rep. 336; Blagge v. New York Ins. Co., 1 Caines, 549; 1 Phillips, nos. 595, 596, 597; see also 2 Duer, 516, 561. Bates v. Campbell v. held in the United States, that not disclosing that the property insured belongs to a house established and doing business in a belligerent state will be a material concealment, and defeat a policy made in a neutral country "for whom it may concern;"1 so the not disclosing that enemy's property embarked in a neutral ship was covered as the property of a neutral, was there also held to be a material concealment, vitiating the policy.2 The Georgia had been in the service of the Confederate States of America as a cruiser during 1863-4, and was afterwards laid up in Liverpool, and there purchased at public auction by the plaintiff, who converted her into a merchant vessel. When he proposed her to the defendant for insurance, it was as "The Georgia, s. s., chartered on a voyage from Liverpool to Lisbon and the Portuguese Settlements on the West Coast of Africa and back." She was captured on her voyage by a war steamer of the United States. It was held that the plaintiff ought to have communicated the fact that she had been the Confederate cruiser, and consequently that by reason of this suppression the policy was void.3 Ship and goods, the property of an American subject, were, in a policy dated the 30th July, 1812, insured "from London to certain ports in America against all risks, American capture and seizure included." On arrival, the ship was seized by the American government, on account of a war with America, which had broken out in the same month of July, 1812, before, but not known till after, the policy was effected. The fact that the assured was an American subject was not stated on the face of the policy, nor disclosed by the broker to the underwriter, and this was held by Lord Tenterden and the Court of King's Bench to 1 Bauduy v. Union Ins. Co., 2 Washington's C. C. Rep. 391, cited 1 Phillips, no. 624. See, however, Buck v. Chesapeake Ins. Co., 1 Peter's Sup. C. Rep. 151; 1 Phillips, no. 625. 2 Stocker v. Merchants' Fire and Marine Ins. Co., 6 Mass. Rep. 210; 1 Phillips, no. 629. 3 Bates v. Hewitt, L. R., 2 Q. B. 595. See further as to this case, post, p. 582. be a suppression that vitiated the policy, since the fact, if disclosed, might have made a material difference to the risk.1 It is manifest from the fact of American seizure being included as one of the risks in the policy that war between this country and the United States was at the time of effecting the insurance feared and anticipated. Loudon. So, sailing without convoy, unless the ship be within the Without exception of the convoy statutes, is a material circumstance convoy. to be disclosed. A broker having proposed an insurance on Sawtell v. the ship Sophia, from Bristol to Port Mahon, &c., with liberty to seek, join and exchange convoy in the English and Irish Channels, the underwriter stated, that a ship called The Sophia, of Bristol, was reported at Lloyd's as being then at sea without convoy; the broker afterwards was informed by his employer that this was the same ship; this letter however was not communicated, and the Court held that, as the ship in question was not within any of the exceptions of the Convoy Act, the concealment was fatal to the policy effected under these circumstances.2 If the ship was foreign built, and, therefore, not within the Long v. Duff. scope of the Convoy Act, the fact of her having sailed without convoy need not have been communicated, nor yet the fact that she was foreign built, or otherwise excepted from the operation of the Act; for it is the duty of the underwriter to obtain such information for himself.3 Where an insurance was effected on goods "to return five Reid v. per cent. for convoy and arrival;" the non-communication of Harvey. the fact that the vessel had sailed without convoy, coupled with the above stipulation, was held fatal to the policy.* 1 Campbell v. Innes, 4 B. & Ald. 423. Although this war did not break out till the month of July, 1812, differences had arisen some time previously between the British and U. S. governments, and were the subject not only of common conversation, but of special reference in the speech 2 Sawtell v. Loudon, 1 Marshall's 3 Long v. Duff, and Long v.. .Bolton, 2 B. & P. 209. • Reid v. Harvey, 4 Dow's P. C. 97. The state of the ship on the voyage. De Costa v. Durrell v. All material information communicated to the assured with regard to the state of the ship in the course of the voyage ought to be disclosed whether it be certain intelligence or doubtful rumour. If it concern matters preceding the commencement of the voyage, e.g., such as would be covered by a warranty of seaworthiness, Lord Ellenborough was of opinion that it was unnecessary to disclose it:1 under a time policy it may be otherwise.2 One that had a doubtful account of a ship like his own being captured, caused his own to be insured without communicating what he had heard, and the insurance was held to be void. So in case of rumoured shipwreck.1 A policy was effected on the 24th of March on a privateer, which had sailed from Jersey on the 6th, and reports in Jersey that some French frigates were about the coast and had made a capture on the 7th, continued to prevail and receive credit until the plaintiff sent the orders on which the insurance was effected, yet he had not said a word about them in his letter; this was held to be a material concealBeckthwaite ment which vitiated the policy. So where the plaintiff v. Nalgrove. concealed from the underwriters the fact that he had received a letter from the Cape of Good Hope, stating that there were then two or three French privateers in those seas, he was nonsuited on the ground of that concealment." Important, though ulti mately false. Even though the report eventually prove to be totally false and unfounded, its communication, as we have already seen, is not on that account less indispensable, if it would have 1 Per Lord Mansfield, Shoolbred v. Nutt, 1 Marshall, Ins. 474; per Lord Ellenborough, Haywood v. Rodgers, 4 East, 590. 2 Russell v. Thornton, 4 H. & N. 788; 29 L. J. (Ex.) 9; in error, 30 L. J. (Ex.) 69. 9 De Costa v. Scandret, 2 P. Wms. 170. 4 Nicholson v. Power, 20 L. T., N. S. 580. 5 Durrell v. Bederley, Holt, N. P. 283. The privateer, it appeared, had actually been captured by the French on the 7th of March, about thirty miles from Jersey. • Beckthwaite v. Nalgrove, Holt's N. P. 388, cited in 3 Taunt. 41. |