any operation at all: and having, in the course of that enquiry, been led into a variety of discussion, involving in it a very material part of the law of infurance: we shall proceed to fhew in what cafes the policy, although not void ab initio, is rendered of no effect, because the infured has not himself fully complied with those conditions, which he has either exprefsly, or tacitly, from the nature of his contract, undertaken to perform. It was indeed obferved in the firft chapter of this work, that al- Vide ante, though the policy is not fubfcribed by the in- P. 1. fured, yet there are certain conditions to be performed on his part, with as much good faith and integrity as if his name appeared at the foot of the policy; otherwife it is a dead letter, and he can never recover an indemnity for any loss, which he may happen to fuftain. CHAPTER THE SIXTEENTH Ο Of Changing the Ship. F those causes, which will operate as a bar to the infured's recovering upon a policy of infurance, against the underwriter, the first to be mentioned is that of changing the fhip; or, as it has commonly been called, changing the bottom. This will require but very little difcuffion. We formerly faid, that except in fome fpe- Vide ante, cial cafes of insurances upon ship or ships, it was c. 1. effentially requifite to render a policy of infurance effectual, that the name of the fhip, on which the risk was to be run, fhould be inferted. That being done, it follows as an implied condition that the infured fhall neither fubftitute another ship for Mal, Lex. Molloy, 1. 2.1 . 7. f. 11. for that mentioned in the policy before the voyage commences, in which cafe there would be no contract at all: nor during the course of the voyage remove the property infured to another fhip, without the confent of the underwriter. If he do, the implied condition is broken, and he cannot recover a fatisfaction, in cafe of a lofs, from the infurer; because the policy was upon goods, on board a particular fhip, or upon the fhip itself; and it becomes a material confideration in a contract of infurance, upon what veffel the rifk is to be run; fince the one may be much stronger, and more able to refift the perils of the fea; or by its fwift failing, much better able to escape from the purfuit of an enemy, than the other. Malyne, it is true, in his Lex Mercatoria, appears to be of a different opinion; for he fays, "It fometimes happens, that upon fome special "confideration, this claufe forbidding the trans"ferring of goods from one fhip to another is "inferted in policies of affurance; because in "time of hoftility or war between princes, it "might be unladen, in fuch ships of those ""contending princes, by which the adventure "would be encreafed. But according to the "ufual infurances which are made generally "without any exception, the affurer is liable "thereunto; for it is understood, that the maf"ter of a fhip, without fome good and accidental "caufe, would not put the goods from one ship ર to another, but would deliver them, according "to the charter-party, at the appointed place." The reafon given by Malyne, in fupport of his pofition, is by no means fatisfactory, nor is it well founded in point of experience: neither has he adduced a fingle authority to corroborate the opinion advanced. Indeed, the whole current of authority turns the other way: at least, as far as I have been able to trace it. Molloy has faid, that if goods are infured in fuch a fhip, and afterwards in the voyage she becomes becomes leaky and crazy, and the fupercargo and master, by confent, become freighters of another veffel for the fafe delivery of the goods; and then after fhe is loaded, the fecond veffel miscarries, the affurers are discharged. It is true, the fentence proceeds thus: "If thefe "words be inferted, namely, the goods laden to "be tranfported and delivered at fuch a place by the cr faid fhip, or by any other ship or vessel, until they "be fafely landed, the infurers must answer the "misfortune." But this does not at all affect the general rule before laid down; for it only goes to fhew that, which is not denied, that the parties may take a cafe out of the general rule of law, by a special agreement: and the exception proves the truth of the first propofition. This opinion is confirmed by foreign writers. Roccus de "Merces fi eâdem navigatione transferantur de Affecurat. unâ navi in aliam, et fi noviffima navis, ubi Not. 28. merces transfufæ fuerunt, deperdatur, tunc "eft infpicienda forma affecurationis, in quâ fi "fuit dictum, quod affecurentur merces, que funt in tali navi, tunc affecurator non tenetur, eo quod mentionem fecit in affecuratione de "tali navi. Et ratio eft, quia non par eft ratio "affecurationis, quando merces devebuntur in una "navi, et quando in alterá; imo folet id principaliter confiderari inter ipfos affecuratores, cum una navis fit magis fortis quam alia." Santer. de Roccus is corroborated by feveral learned writers upon this branch of jurifprudence. Affecurat. P. 3. n. 35. 8. n. 10. In the law of England, there is only one cafe to be met with in print upon the fubject; and that is not exprefsly in point to the prefent enquiry, although it feems to decide it. It was a cafe which came on at Guildhall before Lord Chief Justice Lee. The plaintiff had infured Dick v. intereft or no intereft on any ship he fhould come Barrell. in from Virginia to London, beginning the adven- 2 Stra. 1248. ture on his embarking on board fuch fhip; the money to be paid, though his perfon fhould escape, efcape, or the fhip be retaken. He embarked on the Speedwell; but the fpringing a leak at fea, he went on board the Friendship, and arrived fafe at London; but the Speedwell was taken after he left her. And now in an action against the underwriter, he was held liable; for the insurance is on the ship the plaintiff fet out in: and bad that got fafe home, and the other been lost, the plaintiff could not have recovered upon the ground of having removed his person into that fhip in the middle of the voyage. From this cafe it appears, that although no fhip was named in the policy, yet the moment the fhip was ascertained by the embarkation of the infured, the contract was at an end, provided the second ship had been loft; for fo the words in Italicks exprefsly import. A fortiori, therefore, the infured could not be entitled to recover, upon a change of the bottom, when the name of the veffel is exprefsly mentioned in the very inftrument by which the contract is effected. And although the insured, notwithstanding the change of bottom, recovered in the cafe cited from Strange; it may be accounted for in two ways, confiftent with the doctrine advanced in this chapter. In the first place, it was a gaming policy, intereft or no intereft; and the plaintiff was entitled to recover the moment the fhip was taken, although he might perhaps not be interefted at all: or perhaps the effects infured might be left in the first ship, although the plaintiff removed his perfon; in which cafe, even at this day, upon a fair bond fide policy, he would be entitled to recover from the underwriters a fatiffaction for the lofs he had fuftained. The general doctrine relative to changing the bottom of the fhip was alluded to by Lord Manffield, when delivering the opinion of the court in the cafe of Pelly against the Royal Exchange Affurance Company, which has already been c. 2. p. 45 fully reported in a preceding chapter. "One Vide ante I Burr. 351. objection," "objection," faid his Lordship, "was formed "by comparing this cafe to that of changing "the fhip or bottom, on board of which goods "are infured: which the infured have no right to "do. For there the identical fhip is effential; "that is the thing infured. But that cafe is not "like the prefent." From this paffage it is evident, that Lord Mansfield intended to confirm the principle advanced in this chapter, namely, that when an infurance is made on a specific fhip, and the infured, without the confent of the underwriter, changes the ship in the course of the voyage, he has not kept his part of the contract, and cannot recover against the underwriter. CHAPTER THE SEVENTEENTH. Of Deviation. EVIATION, in marine insurances, is D understood to mean a voluntary departure, age without neceffity or any reasonable caufe, from the regular and ufual courfe of the fpecifick voyinfured. Whenever a deviation of this kind takes place, the voyage is determined; and the underwriters are difcharged from any responsibility. It is neceffary, as we have feen, to infert Vide ante in every policy of infurance, the place of the c. 1. fhip's departure, and alfo of her destination. Hence, it is an implied condition to be performed on the part of the infured, that the ship thall purfue the most direct course, of which the nature of things will admit, to arrive at the deftined port. If this be not done; if there be no fpecial agreement to allow the fhip to go to certain places out |