Liberty to in the most usual terms. But the multifarious exigencies By statute, "Every policy shall specify the particular (8.) We have already said that the course of the ship's touch or stay. navigation is never in terms expressed in any policy. It is an implied condition of every policy, as we shall see more at large hereafter, that the ship in sailing between the termini of the voyage insured, shall pursue that course or track which long usage has established to be the safest and most direct mode of navigation, without deviating from it to touch at any ports or places whatsoever which lie between the extreme points of the voyage, unless express liberty for that purpose be inserted in the policy. As very few voyages, however, occur in which it is not desirable that the ship should have the power of touching at intermediate ports, the common printed form of policy invariably contains this clause :-"And it shall be lawful for the said ship, &c., in this voyage to proceed and sail to and touch and stay at any ports or places whatsoever [ ] without prejudice to this insurance." The blank which is left, is for the purpose of specifying the particular ports and 130 Vict. c. 23, s. 7. places at which it is intended this liberty shall be exercised ; and the various modes in which this blank may be filled up, together with the numerous cases decided on the construction of this clause in the policy, will be referred to at large hereafter, in considering the law affecting Deviation. (9.) "The said ship, &c., goods and merchandises, &c., for Valuation clause, and so much as concerns the assured, by agreement between the sum insured. assured and assurers in this policy are and shall be valued ]." at1[ As will appear from the language of the clause, this valuation is agreed to be final and conclusive "between the assured and assurers," on the particular policy; and consequently, as will appear hereafter, it cannot be set aside, except in cases of fraudulent over-valuation.3 It is not unfrequently the case that where the interest intended to be insured requires a more specific description than that contained in the general printed form, such description is inserted in this clause; as, e. g., the said ship and goods, &c., "are and shall be valued [at one thousand pounds, being on twenty bales of cotton, marked to 20, the 1 The words "as under" were here written in, and the following blank remained not filled up; lower down in the margin was written "1300%.," and opposite to this, but in the body of the policy, following the 3 per cent. memorandum clause, were written these words,-"on freight, warranted free of caption, seizure," &c. This was held not to be a valued policy; 2 Stevens on Average, part ii. 3 Barker v. Janson, L. R., 3 C. P. 303; North of England Iron St. Shipping Ass. v. Armstrong, L. R., 5 Q. B. 244. Sum insured. said twenty bales valued at that sum] or [at one thousand pounds, being on the interest which I. S. has as owner in one fourth share of the said ship, the said one fourth share being valued at that sum]," or the words "valued at " are frequently struck out, and a description of the subject of insurance then inserted without any valuation; as, e. g., the said ship and goods, &c., for so much as concerns the assured and assurers in this policy are "freight," or "profits," or "money lent on bottomry." In this case it is obvious that the words "the said ship and goods," &c., are to be read as though they meant "the subject insured by this policy, as far as concerns the assured and underwriters, is taken to be 'freight,' 'profits,' 'bottomry,'" &c. The words "valued at" are frequently struck out, and the sum insured is then inserted thus, "10007. on ship," or "on goods," &c.; and if it is intended that it should be a valued policy, then it proceeds Perils insured against. By statute every policy shall specify the sum or sums insured, and in case the same shall be omitted in any policy, such policy shall be null and void to all intents and purposes.1 (10.) The next clause in the policy contains an enumeration of the perils against which the underwriters undertake to insure the property on which the policy is effected; or, in the language of the clause, which they "are contented to bear, and do take upon them" in the voyage insured. As the underwriter is, on plain principles, considered not to be liable to indemnify the assured against loss arising from any perils not specified in the policy or embraced in the general clause, great care has been taken to make this form of words as comprehensive as possible; and the clause 1 30 Vict. c. 23, s. 7. in its present state may fairly be regarded as affording a protection against almost every casualty which can possibly happen in the course of any voyage, and for which it is meant that the underwriter shall be answerable. The effect of it is frequently modified by express warranties inserted at the foot of the policy, c. g., "warranted free from capture or any attempts thereat, or the consequences thereof." labour clause. (11, 12.) "And in case of any loss or misfortune it shall Sue and be lawful to the assured, their factors, servants, and assigns, to sue, labour, and travel for, in, and about the defence, safeguard and recovery of the said goods and merchandises, and ship, &c., or any part thereof, without prejudice to this insurance to the charges whereof we, the assurers, will contribute each one according to the rate and quantity of his sum herein assured." The effect of this clause, when stated generally, seems to be to provide by all reasonable means for the safety of the subject of insurance whensoever it is in danger of loss or damage by the perils insured against. Viewed more particularly, it enables the assured by his agents, servants, &c. to interfere for the prevention of imminent damage or loss without the dread of drawing thereby upon his own shoulders the misfortune that may result; it authorizes him to labour and to spend at the costs and charges of the insurers in order to avert a loss that would fall upon the insurers, or to mitigate its consequences; so that whilst he is entitled to recover all moneys properly expended by him in preventing such a loss or its consequences, he is not prejudiced by this interposition on his part from recovering for the loss itself, or from insisting on his abandonment of the subject of insurance, although notice thereof may have preceded his interference. But as this clause is at present 1 See the elaborate discussion of this clause in the very learned judgment of Willes, J., in Kidston v. The Empire Insurance Co., L. R., 1 C. P. 535; in error, L. R., 2 C. P. Contract to insure;-and worded, it does not entitle the assured to recover moneys expended in averting perils not insured against, when these threaten or assail the subject of insurance, or perils that are insured against if they do not threaten loss or misfortune to the subject insured.' (14, 15.) "And so we the insurers are contented and do receipt clause. promise and bind ourselves, each one for his own part, our heirs, executors, and goods, to the assured, their executors, administrators, and assigns, for the true performance of the premises: confessing ourselves paid the consideration due unto us for this assurance by the assured," &c. The policy, it will be observed, contains only a promise by the underwriters, without anything in the nature of a counterpromise on the part of the assured; the reason of this is, that the premium, or, as it is described in this clause of the policy, "the consideration due unto them for the assurance," is always supposed to have been paid to the underwriters at the time the policy is subscribed by them, and is accordingly acknowledged to have been so paid on the face of the instrument. In point of fact, the premium is scarcely ever, in the actual course of London business, paid till long after the policy is effected; the amount being passed in account between the insurance broker and the underwriter, between whom a running account is kept of premiums and losses.2 Although this is the actual course of practice, yet the acknowledgment of the receipt of premium in the policy is so far binding on the underwriter as to prevent him seeking to recover the premium from the assured himself; unless there be fraud on the part of the broker or of the assured.5 1 Great Indian Peninsular Ry. Co. 4 3 3 De Gaminde v. Pigou, 4 Taunt. 246; Dalzell v. Mair, 1 Camp. 532. 4 See Mavor v. Simeon, 3 Taunt. 497 n. 5 Foy v. Bell, 3 Taunt. 493. |