on a valued policy for the full amount mentioned in the policy, and on an unvalued policy to whatever is the insurable value of the subject-matter. But in the case of a constructive total loss the underwriters are not liable for these amounts unless notice of abandonment has been given within a reasonable time. On a partial loss, as a rule, the underwriters are not liable to the full amount in the case of damage to a ship, the shipowner must bear a proportion of the loss as he is getting benefit by having his ship, presumably partly worn by wear and tear, repaired with new material. Partial loss to the cargo is adjusted by certain recognized rules based on the different values of the goods caused by the damage. Such adjustment is usually settled by the respective brokers on behalf of the insurer and the insured. Notice of Abandonment. Where the ship has been abandoned, notice thereof must be given to the underwriters, either verbally or in writing. But in whatever form it may be given such notice must be certain, unconditional, must relate to the whole thing, and must be given at the earliest opportunity. The effect of such notice is that the underwriter succeeds, by the doctrine of Subrogation, to the interest of the assured as from the time of the happening of the loss. Average. The matter of Average is considered in Chapter 7 on Shipping, but it may be mentioned here that the following abbreviations relating to Average are used in connection with marine insurance : F.G.A. means Foreign General Average, that is to say, that in the event of goods being liable to General Average the rules to be applied will be those of the country of destination, that is, the law of the place where the adjustment is made; f.p.a. means Free from Particular Average, that is to say, the assured can only recover where the loss is due to a general average sacrifice. In order to bring into line the laws and customs of various countries in relation to this important question, a set of international rules was drawn up in 1877, known as the York-Antwerp Rules. These rules were revised in 1890 and the original rules rescinded by the Conference of the Association for the Reform and Codification of the Law of Nations, held at Genoa. The revised rules are still known as the York-Antwerp Rules, Return of Premium. Where the consideration for the payment of the premium totally fails, the premium must be returned, e.g., if the insurance is void from the beginning; and, if only a proportion of the risk is run, a proportionate amount of the premium must be returned, e.g., where some only of the goods are shipped. Obviously, however, this rule does not apply to an insurance effected "lost or not lost," where the ship had at the time, but unknown to the insurer, actually arrived in safety. Once the risk has commenced to run no part of the premium can be returned. Double Insurance. Where the insured effects two or more policies on the same subject-matter, so that he is over-insured, the excess cannot be recovered, but he may sue on which policy he prefers. As between the insurers they are liable to contribute rateably their proportionate parts. Should the insured actually have received any excess, he is bound to hold that amount in trust for such of the insurers as may be found to be entitled to it. Re-insurance. Where an insurer has already undertaken a risk he may himself insure with another office in order to lighten his own risk. This is known as re-insurance. Certain companies exist which specialize in re-insurance. Assignment. A policy of marine insurance is assignable unless forbidden in the policy. But the assignee takes the policy subject to any defences that could be set up against his assignor. The assignment is by indorsement or, if the policy is indorsed in blank, by delivery. ACCIDENT INSURANCE In accident insurance the insurer is not subrogated to the rights of the insured, for accident insurance is not, strictly speaking, a contract of indemnity; it is, rather, an undertaking to pay an agreed sum on the happening of a specified event, viz., death or certain forms of injury from accident. So a person who has been injured in an accident may both draw the insurance money from the insurance company and claim damages in respect of the injury from the negligent party. No definite rules can be laid down as to accident insurance policies, for they differ so widely. An insurance policy that purports to indemnify a third party against liability for accident is not an accident policy -to be an accident policy it must be a personal contract only. OTHER FORMS OF INSURANCE As already stated, it is possible to insure against every conceivable risk, and many "freak" policies are issued from time to time. The more usual forms of insurance, other than those already considered, are against Burglary and Larceny, Disease and Sickness, Loss of Profits, etc.; also the insurance of Motor Cars and Plate Glass, the fidelity of employees by what is known as Fidelity Guarantee, against any liability to third parties, such as Employers' Liability under the Workmen's Compensation Acts, and at Common Law. There is also a system of compulsory National Insurance for certain classes of workers in respect of Health and Unemployment. The principles are the same in all forms of insurance, although in some details they may differ slightly. Life Assurance. STAMPING OF POLICIES Where the sum insured does not exceed £10 £50 or fractional part thereof Exceeding £500 and not exceeding £1,000, for every £100 or fractional part thereof Exceeding £1,000, for every £1,000 or any fractional part thereof Fire Insurance. Sixpence, which may be by an adhesive stamp. Marine Insurance. For or upon any Voyage Policy— Where the sum insured does not exceed £250. £500-£750 . £750-£1,000 Where it exceeds £1,000, for every £500 and For Time Policies. For any time not exceeding six months-Three Exceeding six months but not exceeding twelve Accident Insurance. Accidental death, or personal injury, or periodical payments during sickness Loss or damage to property CHAPTER 9 CARRIAGE AND AFFREIGHTMENT CARRIAGE The sale of goods would not be of much benefit unless the goods could also be transported to the buyer. The law of Carriage, therefore, is second in importance only to the law of Sale. Common Carriers. A common carrier is one who undertakes to transport from place to place, for hire, the goods of such persons as choose to employ him. He must publicly profess to carry goods for hire as a business, and not as a casual employment; so that a man who undertakes occasional jobs is not a common carrier, nor is a person who carries passengers only. He must also carry goods from town to town or from country to country, by carriages, barges, or ships; so that a lighterman or barge owner is a common carrier, but a man who undertakes to carry goods within a town and who does not carry from one distinct place to another is not a common carrier within the meaning of the term, nor is a carman who does odd jobs, nor a furniture remover who makes special contracts with his customers. Railway companies are only common carriers as to goods which they ordinarily carry, as was decided in East India Railway Co. v. Kalidas Mukerjee (1901). Railway companies are not regarded as insurers of the safety of their passengers, but they are liable for injuries happening to passengers through negligence. The party claiming for injury must prove the the negligence, except where the vehicle, at the time the injury was suffered was under the control of the company, e.g., a collision, in which case negligence will be presumed and it will be for the company to show that there was, in fact, no negligence on its part. Liability of Carriers. Until comparatively recent times, all land carriage was by road vehicle, and it was a comparatively easy matter for carriers to combine with thieves "in such a clandestine manner as would not be possible to be discovered." (w) In order, therefore, to prevent such transactions, the common law liability of carriers was very great. They stood in the position of insurers, and were liable for all losses except those caused by (1) The Act of God; (2) The King's enemies; (3) Inherent vice in the goods carried; (4) Negligence of the person whose goods are carried. Now, however, the liability has been to some extent lessened by statute. It has always been possible for carriers to make special contracts with their customers and thus limit their liability. This was done by putting up notices in the warehouse, and this was held to constitute a special contract, if it could be proved that the notice had been brought to the knowledge of the customer, but not otherwise. Even this special contract, however, would not limit the carrier's liability for gross negligence. Carriers Act, 1830. Owing to the unsatisfactory position, the Carriers Act, 1830, was passed, and this enacts (1) That no common carrier by land for hire shall be liable for any loss of, or injury to, any gold or silver coin, precious stones, jewellery, watches, clocks, negotiable paper, title deeds, pictures, gold or silver plate or plated articles, china, furs, silk, lace, etc., contained in any parcel either carried for hire or accompanying the person of any passenger when the value exceeds £10, unless at the time of delivery of such parcel to be carried the value and nature of the articles shall have been declared and an increased charge paid or agreed to be paid. The amount is taken as that of the aggregate value of the parcel. This is now increased to £25 by the Railways Act, 1921, and silk is deleted from the list. (2) The increased charge can only be demanded if a notice in legible characters is conspicuously posted in the office or warehouse where the parcels are received, and it is then binding without proof of it having come to the knowledge of the customer. (3) A carrier who does not exhibit such a notice is not entitled (w) LORD HOLT in Coggs v. Bernard, see ante, p. 77. |