TIME POLICIES. In time policies the risk commences from the day and date mentioned in the policy, and ends at the time therein specified. CHAPTER VI. THE CONTRACT IS ONE OF GOOD FAITH. THE Contract of insurance is one of good faith and fairness on both sides. both sides. (1 Park on Ins. 403; 1 Arnould, p. 541.) This excludes-1. Concealment of all matters material to the risk on the part of the insured; 2. Misrepresentation; 3. Unseaworthiness; and 4. Breach of warranty. If any of these affect the policy, it will void it; and so will deviation from the prescribed course of the voyage. Of these in the order thus set forth : 1. CONCEALMENT. There is no distinction between wilful concealment of facts material to the risk, and non-communication of such facts occurring by mere mistake or neglect.' In both, the policy is void, although, in so far as the return of premium is concerned, there is a material distinc 1 Scougal v. Young and others, Mor., p. 7091, is an instance where the policy was voided by neglect to communicate facts material to the risk. — (Vide also Keay . Young, Mor. 7088.) tion between them. This is well laid down by Lord Mansfield, in Carter v. Boehm, 3 Burr. 1905, who, after stating that the keeping back of any circumstance material to the risk wilfully, on the part of the assured, is a fraud, states, that where the suppression happens through mistake, without any fraudulent intention, still the underwriter was deceived, and the policy void. The same doctrine is confirmed by Lord Lyndhurst, in Duchet v. Williams, 2 C. and M. 348, 4 Tyr. 240, who laid it down, that the non-communication of a material fact, whether fraudulent or not, will void the policy. Yet the law does not require the communication of every circumstance in regard to the subject or voyage insured, but only of facts material to the risk; and therefore the concealment of facts not material to the risk will not void the policy.-(Beckwith v. Sydebotham, 1 Camp. 115; Lamb v. Smith, 15 Feb. 1815, 18 Fac. Coll. 220; Perrins v. The Marine and General Travellers' Insurance Company, 2 Q. B. 41, affirmed in Excheq. 563.) Thus, where the party insuring had not communicated a part of the letter of advice from the captain of the ship, which stated his expectation that the vessel should arrive in the Clyde about the 10th November, or earlier, this was not such a concealment as in law affected the policy, or which the insured was bound to communicate. (Smith, etc., v. Allan, etc., 21 June 1808, 5 Paton's App. Cas. 229.) In this communication there was nothing but a mere expectation; but the concealment of what is matter of mere expectation or surmise, will not be sufficient to set aside the policy.—(Per Lord Mansfield, in Barber v. Flesher, 1 Dougl. Rep. 305; and Lambe and Attorney v. Smith, 15 Feb. 1815, Fac. Coll. 220.) Nor is it necessary for the insured to communicate what the underwriters ought themselves to know. — (Elton v. Larkins, 8 Bing. 198; Friere v. Woodhouse, Holt, 572; per Lord Mansfield, in Carter v. Boehm, 3 Burr. 1905.) Nor will concealment of matters which are of public notoriety, and known to all insurance offices, invalidate the policy.-(Thomson v. Buchanan, Mor. p. 7085, H. of L., 2 Paton's App. Cas. 592.) Nor will the concealment of circumstances which are well known to be sanctioned by custom or usage in certain trades, such as the Newfoundland trade, or the African trade, affect the validity of the policy, provided the custom is proved. (Vallance v. Dewar, 1 Camp. 503; Kingston v. Knibbs, 1 Camp. 508, n.; Ougier v. Jennings, 1 Camp. 505, n.; per Lord Eldon's speech in Tennant's case, affirming the judgment of the Court of Session, 1 Dow, 324; Moxen v. Atkins (1812), 3 Camp. 199.) But the insured is bound to communicate all letters of advice that directly affect the risk. Thus, in Campbell, etc., v. Russell and Co., 4 March 1793, 3 Paton's App. Cas. 340, two letters from the captain had not been communicated, which represented the vessel to be leaky and weakly manned, and that she had been boarded in a sinking state. This was held by Lord Thurlow to be material to the risk; and not having been communicated, the policy was declared to be void. In like manner, where an insurance had been effected on cargo, the vessel (then in a foreign port) in which the cargo was to be shipped, was represented as a very good vessel; and though she had touched a rock in going into harbour at Jamaica, yet that no material damage had occurred, and she had got a thorough repair. It transpired that the insured had received subsequent letters, giving a very different account of the vessel, and intimating doubts whether he would be able to take a cargo, or sail with convoy at the time specified, which letters were not communicated; and it was held in the House of Lords, that the letters contained information most material to the risk, which having been concealed, the policy was void.—(Smith, etc., v. Bogle, 16 March 1809, 5 Paton's App. Cas., p. 248.) So also, where a ship was insured (then at Koningsberg), and it was stated she was expected to be loaded between the 13th and 20th of September, while, in point of fact, it was concealed that the vessel was completely loaded and ready to sail on the 13th September, and had gone to sea on that day, and was wrecked on the 16th September, this was held to vacate the policy.-(Stewart v. Morison, Mor. 7080.) In the insurance of a vessel engaged on a trading voyage to the African coast and back, the policy bore, "with liberty to exchange goods with other ships, and to sail to, and touch and stay at any port or ports or places whatsoever and wheresoever, without being a deviation." No mention was made that another vessel was to co-operate as a tender, and no more than the ordinary premium of six per cent. was paid; and although it was strongly contended that the underwriters knew the usage of the trade on the African coast, to have such tenders, as attendant on the ship insured, to facilitate the objects of the voyage, yet Lord Eldon held that the fact of usage could only have been material had it been established as a fact. But that not having been proved as a fact, the assured had no case; and the vessel having been obliged to wait on her tender ship, and to provide a cargo both for her and the ship insured, the length of the voyage was thereby prolonged, and the risk consequently increased.- (Henderson v. Allan, 5 Paton's App. Cas. 736; and Tennant's case, 1 Dow, p. 324.) Even although there be no direct communication from the master, yet if a party insure in circumstances which presume his knowledge of facts which were well and publicly known in the town where the insured resided, and these are concealed, that will vacate the policy. Thus, Stewart, residing in Greenock, had been attempting to insure a ship and cargo from St John's, Newfoundland, to St Lucia; but had not succeeded, although fifteen guineas per cent. premium had been offered,—the war with France being then pending, and the French fleet threatening the West India Islands. News had been published in the newspapers and Lloyds, that St Lucia had been attacked, that Tobago had been taken, and that Barbadoes was threatened, which facts were therefore well known. But the day after a certain vessel (the "Henrietta") had arrived at Greenock from Jamaica, Stewart went to Glasgow and effected an insurance on ship and cargo, at twenty guineas per cent. premium. It was well known |