insured's disclosing a letter received from his captain before the policy was effected, announcing the day of the intended departure, that fact being deemed materiala. Where it was known at Lloyd's that the Sophia of Bristol was at sea without convoy, and the broker inquired of the plaintiff at Bristol, whether that was the ship insured, and was informed it was, and that the plaintiff supposed she had been prevented by adverse winds from joining convoy at Falmouth, but the broker got the policy altered without disclosing this answer to the underwriters; held, that this concealment vacated the policy b. SECTION XIX. RETURN OF PREMIUM. has been run, the insured is entitled to a return of premium; but not, if the risk has once commenced. WHENEVER the contract of insurance is void, without any fraud If no risk on the part of the insured, or whenever the risk has not been run, though it be owing to the fault or negligence of the insured, the insured will be entitled to a return of premium; but if the risk has once commenced, the insured is not entitled to a return of premium, unless there be an express stipulation to that effect. "There are two general rules applicable to this subject; the first is, that where the risk has not been run, whether its not having been run was owing to the fault, pleasure, or will of the insured, or to any other cause, the premium shall be returned; because a policy of insurance is a contract of indemnity. The underwriter receives a premium for running the risk of indemnifying the insured, and to whatever cause it be owing, if he does not run the risk, the consideration, for which the premium or money was put into his hands, fails, and therefore he ought to return it. Another rule is, that if that risk of the contract of indemnity has once commenced, there shall be no apportionment or return of premium afterwards. For though the premium is estimated, and the risk depends upon the nature and length of the voyage, yet, if it has commenced, though it be only for twenty-four hours or less, the * Elton v. Larkins, 8 Bing. 198. 1 M. & Scott, 323. b Sawtell v. Loudon, 5 Taunt 359. If there be two distinct risks, and one only has been run, the is entitled of an apportionment of the premium. risk is run; the contract is for the whole entire risk, and no part of the consideration shall be returned."a If an insurance be effected on two distinct risks, or voyages, and one of them only has been run or commenced, the insured is entitled to a return of an apportionment of the premium. Thus, in an insurance of a ship at and from Hull to Bilboa, insured warranted to depart from England with convoy, the voyages to a return from Hull to Portsmouth, where she meets with convoy, and from thence to Bilboa, may be considered as distinct; and in case of a loss between the two latter places, an apportionment and return of premium may be demanded b. So upon a policy at and from London to Halifax, warranted to depart with convoy from Portsmouth, the contract and risk are divisible at Portsmouth, as two independent contracts and risks; and if the risk of the voyage from Portsmouth to Halifax has not been run, as where the convoy was gone before the arrival of the ship, the insured is entitled to a return of the premium c. But in an insurance "at and from" the port of departure, the risk is entire, unless there is a usage to the contrary. Therefore, where a ship was insured, "at and from Jamaica to Liverpool, warranted to sail by 1st of August, at twenty guineas per cent. to return eight if she sailed with convoy; and she did not sail until September; held, that the insured was only entitled to a return of eight guineas per cent. for convoy, and not to an apportionment of the rest of the premium d. Where the policy was “at and from Jamaica to London, warranted to depart with convoy for the voyage, and to sail on or before the 1st of August," and the ship sailed before that day, but without convoy; and a jury had found an invariable usage in such voyages to return the premium with a deduction of half per cent. either when the ship sailed before the day without convoy, or after it in any case; held, that an action for a return of the premium would lie ". Per Lord Mansfield, C. J., in 172. • Stevenson v. Snow, 3 Burr. 1237. Where a total loss is reco vered, there cannot also be a return of premium for convoy, because the total loss includes the entire premium added to the invoice price. Langhorn v. Allnutt, 4 Taunt. 511. Meyer v. Gregson, Marsh. 666. e Allen r. Long, Park, 580. Marsh. 668. d If the risk be entire there can be no apportionment of Whenever the risk is entire, and has once commenced, there can be no apportionment of premium; whether the policy be effected for a certain period of time, or upon a certain voyage. Thus, in a policy at and from London to any port or place whatsoever for twelve months, at nine per cent., warranted free from premium. capture, there shall be no return of premium, though the ship be captured before the end of two months; for the risk was entire and had commenced a. So where a ship is insured for twelve months, at the rate of so much per month, though the risk cease at the end of two months, there shall be no apportionment nor return of premium b. An insurance on a ship and goods, at and from A. to B., during her stay and trade there, at and from, to her port or ports of discharge in C., and at and from thence back to A., is an entire contract, and if the loss happen at any time after the commencement of the risk, there shall be no return of premium c. absence of fraud, an insurance without interest, is made there shall be a return of premium, unless a risk If through mistake or any other innocent cause, an insurance If, in the be made without interest, or for more than the real interest, there shall be a return of premium. As if a man, supposing he has goods on board a certain ship to the value of 1000l., insures to that amount, and afterwards finds out that he has no goods at all on board, or that he has goods only to the amount of half the insurance; in the one case he would be entitled to a return of the whole premium, in the other to a return of the moiety d. Where recaptors of a ship insured it, and in an action on the policy, the defence was, that the insured had no interest in the subject-matter, as it was vested in the crown; the court held, that as there was no fraud in the captors in effecting the policy, and as the resistance of the underwriters to the claim of the insured proceeded on the ground that there was no risk, the insured were entitled to a return of the premium®. a Tyrie v. Fletcher, Cowp. 666. b Loraine v. Tomlinson, Doug. 585. • Bernson v. Woodbridge, Doug. 781. d Marsh. 639. e Routh v. Thompson, 11 East, 428. In an action on a policy of insurance, with a count for money had and received, if the defendant has been run. But if a risk has been run, the insured will not be entitled to a return of premium, even though he had no title or interest. As where there was an insurance on ship and freight, and the ship arrived in safety and earned freight, the court held, that the assured could not afterwards claim a return of premium on the ground that he had no insurable interest on account of a defect in his title to the ship; for as the voyage had been performed, and the ship had arrived in safety, and the freight had been earned and paid, it was too late for the plaintiff to say he had no insurable interest. He might have rescinded the contract before the event; but after that had been determined in favour of the underwriters, it did not lie in his mouth to tell them that they never were liable a. Where the captors of a ship seized as a prize, insured her before condemnation, and she was afterwards adjudged to be no prize, and restitution was awarded to the owners; it was held, that the insured were not entitled to a return of premium, as the risk had been run; for they had an insurable interest, inasmuch as they had possession of the property insured, and if it were a legal capture, they were entitled; if it were not, the Court of Admiralty might amerce them in the damages and costs, and they had a right to insure themselves against a decision which might have loaded them with damages and costs ". But the insured is entitled to a return of premium, whenever the risk does not attach, and he acts bona fide. As where on policy at and from Gottenburgh to Riga, upon goods and ship, beginning the adventure upon the goods from the loading thereof aboard the ship at Gottenburgh; it appeared that there were not any goods laden at Gottenburgh, but only at London; it was held, that as the risk upon the goods never commenced, the plaintiff was entitled to a proportional return of premium ; and, on the same principle, if the voyage be unavoidably prevented, the insured is entitled to a return of the premium. As where a policy was made on a foreign port, and a war broke out, which was unknown to the insured, whereby the voyage a M'Culloch v. Royal Exchange Assurance Company, 3 Camp. 406. Boehm v. Bell, 8 T. R. 154. с Horneyer v. Lushington, 15 East, 46. 3 Camp. 90. was prevented; held, that the insured was entitled to a return of the premium a. So where a license for a voyage had been obtained, but not till after the voyage had commenced, which was therefore invalid, as it could not operate retrospectively b. So where the broker represented that the ship had a French license, but had mistaken a pass, which only enabled the ship to go down the Elbe, for a license to trade with England, the insured was held to be entitled to a return of premium, as the risk never attached, and there was no fraud c. fraud or there shall turn of premium. But if the insured be guilty of fraud; as where he altered If there be the policy without the consent of the insurer; and where he illegal knew that the ship was lost before he effected the policy e; or trading, if the insurance be illegal, and the voyage has been performed, be no rethe insured will not be entitled to a return of premium; though the underwriters would not be liable in case of a loss, as in case of a policy intended to cover a trading with the enemy ; or in contravention of the navigation laws h. It seems, however, that in case of an illegal policy being effected, if the insured rescinds the contract before the risk is run, will be entitled to a return of premium '. he to return premium. Where there is an agreement to return part of the premium, Agreement "if the ship arrive," the assured will be entitled to a return, in the event of an arrival of the ship at the port of destination, although it should appear that the ship has sustained a loss occasioned by a sea risk k. As where the insurer on freight agreed to return part of the premium" if the ship sailed with convoy and arrived;" held, that the insured were entitled to that return, the ship having sailed with convoy and arrived, though she had been captured and recaptured, and the assured |