Special regulations have been made by the legislature relative to marine insurance, whether effected by companies or otherwise. Thus, in order to prevent inconvenience to the public from policies being made in blank—that is, without specifying the names of those for whose benefit, or on whose account, they are made-it has been provided by the Marine Insurance Act, 1788, that no policy of insurance on a ship or cargo shall be valid, unless there be inserted therein, before it is made or effected, the name or usual style of one or more of the persons interested therein or if not, then of the consignor or consignee of the goods of which the cargo shall consist, or of the person in Great Britain who shall receive the order for or effect such policy, or of the person who shall give the order to the agent employed to negotiate or effect the same. Until a recent period, moreover, the practice of re-insurance, with reference to maritime insurance,-that is to say, a contract whereby an insurer seeks to relieve himself from a risk which he may have incautiously undertaken, by throwing it upon some other underwriter (f),--was forbidden by the law, except in certain specified cases (g) ; but the Marine Insurance Act, 1745, s. 4, by which this restriction was imposed, has been now repealed, so that such re-insurances are now freed from illegality, and are practically absolved from all restrictions. This contract of re-insurance must be distinguished from what is sometimes called the contract of double insurance; which is, where a person, being fully insured by one underwriter, effects another insurance on the same subject, with some other underwriter or underwriters. This contract was always held lawful; and the amount of the actual loss was recoverable by the assured against any or either of the underwriters. But, inasmuch as a marine insurance is a contract of indemnity only, the law will not allow the (f) Delcer v. Barnes (1807), (g) Mackenzie 1 Taunt. 48. V. Whitworth assured to recover anything beyond the single amount of his loss. And therefore, if he obtains full satisfaction upon either of his policies, he may not further proceed on the others; but the underwriter who has paid is (like one of several co-sureties) entitled to contribution from the other underwriters who have underwritten the same loss (h). It is also to be observed that, by the Stamp Act, 1891, s. 93, no policy upon any ship, or upon any share therein, may be made for any certain term exceeding twelve calendar months; and by the Policies of Marine Assurance Act, 1868, an assignee of the policy, provided he be beneficially interested therein, may sue on it in his own name. The subject-matter insured is most usually the ship, or the cargo, or both, though it is also a common practice to insure the freight which the vessel is about to earn, or the profits expected from the cargo (i). The risks insured against are (unless excepted) usually the following:perils of the seas, which comprise all the dangers on the sea incident to navigation (k); capture by a public enemy (1), or by pirates (m); fire (n); jettisons, that is, the voluntary throwing overboard of goods or merchandize, to ease the ship in time of danger or distress (o); arrests or embargoes laid on by public authority (p); and fraudulent conduct (or barratry) on the part of the master or mariners (q). Against all these risks the underwriters (in consideration of a premium paid down) severally engage to give their indemnity to the extent of a specified sum, during the particular voyage mentioned in the policy; and even if the vessel should have been lost at the time when the policy is executed (such fact being then unknown to both parties), the insurance is, by the ordinary form of these contracts, still binding,-it being the practice in our English policies to insure "lost or not lost," words not usually inserted in the insurances of other nations (r). But the voyage marked out in the policy must be always exactly pursued; for the slightest deviation from it, except under circumstances of absolute necessity, will render the insurance ineffectual, and that whether the loss be occasioned by the deviation or not, and whether the ship resume her proper course or not before the loss happens (s). Every marine policy, too, is made under an implied warranty, that the ship shall, at the time of her setting sail, be seaworthy, that is, in a condition to perform the voyage; and if the fact turns out to have been otherwise, the assured is not entitled to recover in the event of a loss, whether the loss have proceeded from the defects in her condition, or from any other cause (t). The assured in a policy of marine insurance is entitled to claim upon the policy, not only where he is able to give direct proof of loss, but where he can show circumstances from which a loss may reasonably be presumed-as that a sufficient time has elapsed for receiving intelligence of the vessel since her departure, and that none has been received ; for under such circumstances it will be inferred that she has foundered (u). But where direct proof of the calamity is given, it may turn out that the loss is either a total, or a partial loss (r) ; and a total loss may be either actual or constructive. "Total loss" is said to be "actual," where the thing insured is absolutely destroyed, so as to remain no longer in specie, or where it is so damaged that it cannot ever arrive in specie at the port of destination (e). It is said to be "constructive," where the injury sustained is so great, as to make it reasonable that the assured should claim as for a total loss, leaving the underwriter to recover what he can out of the shipwreck or other calamity. And such constructive loss arises, whenever the nature of the loss is such as to afford reasonable ground to the assured for relinquishing the voyage altogether, or where the goods are so damaged as not to be worth the expense of being forwarded (y). But in order to claim as for a total loss, when in fact it is so by construction only, the assured is bound formally to cede or abandon all his remaining right in the property to the underwriter; and unless notice of abandonment be given within a reasonable time after intelligence of the circumstance is received, the loss will be treated as partial only (~). In every case of partial loss, the underwriter is liable to pay such proportion of the sum he has subscribed, as the damage sustained by the subject of insurance bears to its whole value at the time of insurance; but in the case of a total loss, he is liable for the entire amount of his subscription (a). Also, by a clause usually introduced into marine policies, they are commonly made to extend to indemnifying the assured against salvage, that is, against payments properly made for the defence, safeguard, or recovery of the ship or goods, and also against general average, which latter subject requires a more particular consideration. The term general average (otherwise, but not usually, called gross average) expresses the contribution which, by the (x) See note (r) supra, p. 163. (y) Moss v. Smith (1850), 9 C. B. 103. (z) Roux v. Salvador, supra ; Currie v. Bombay Insurance (1869), Rucker (1761), maritime law of every country in Europe, is made by the general body of proprietors of the ship or cargo, towards the loss sustained by any individual of their number, whose property has been intentionally sacrificed for the common safety; as where, in a storm, jettison is made of any goods, or sails or masts are cut away, levande navis causa (b). But to found this obligation, it is essential that the ship should be eventually saved; and that the sacrifice so made should have in fact conduced to her preservation, and also that the cargo so jettisoned was laden in a proper manner. For goods stowed upon the deck (unless where a special custom authorises deck stowage) are not the subject of general average (c). By our law, not only the ship and cargo, but also the freight, is liable to contribute to a general average. The way of settling the contribution among the several parties, on the arrival of the ship at the port of destination, is to ascertain the proportion that the value of the property sacrificed bears to the entire value of the whole ship, cargo, and freight, such estimate being made according to the net value of the several articles, if there brought to sale,—and to make the property of each owner (including the property sacrificed) contribute to the common loss, in the proportion so found. A party obliged to make payment of such quota to the owner of the property sacrificed, is entitled, upon the ground already stated, to seek, in his turn, compensation from the underwriters with whom he may have effected an insurance upon the property liable to the contribution. This contribution is the payment against which the policy (where it includes general average) extends to indemnifying the assured; and the mutual contributions are settied by the award of persons called average adjusters or staters (d). (b) Strang v. Scott (1889), L. R. 14 App. Ca. 601. (e) Wright v. Marwood (1881), 7 Q. B. D. 62. (d) Wavertree Co. v. Love, [1897] A. C. 373. |