Irving v. Morgan v. the underwriters on the later in point of date shall alone be called on for a rateable return of premium.1 Where a double insurance has thus been effected in two or more valued policies, it has been a question whether the valuation in one policy is of any effect in limiting the amount to be recovered under the other. We have seen that it operates no such effect. The valuation in a policy is binding on the parties to it, but the sum recovered under any other policy, valued or open on the same interest and risk, goes in reduction of the amount recoverable under the policy in suit. So that if he have already recovered a sum equal to the amount of the valuation in the policy being sued on, he takes nothing by his action.2 Therefore, where 17007. was insured on a ship in one policy, in which she was valued at 30007., and afterwards a further sum of 20007. on the same ship in a second policy, in which she was also valued at 30007.: Lord Tenterden would not permit the assured to recover more than 30007. on both policies together, although it was proved that the value of the ship exceeded 37007., the aggregate of the sums insured in both.3 So where a bankrupt had effected one policy on a share of a ship, the share valued at 25007., and the official assignee another policy on the same share with the same underwriters, valued also at the same sum, a plea alleging this, averring that the risk, interest, and loss under the two policies were the same, and that the 25007. had been paid on the second policy, was held a good plea in discharge to an action brought by the assignees of the bankrupt on the first policy.1 1 Fisk v. Masterman, 8 M. & W. 165. See this subject further considered post, Part III., Chap. IX. 2 Bruce v. Jones, 1 H. & C. 769; 32 L. J. (Ex.) 132, overruling Bousfield v. Barnes, 4 Camp. 228. 3 Irving v. Richardson, 1 Mood. & Rob. 158; see also S. C. in 2 B. & Ad. 193. Morgan v. Price, 4 Exch. 61; S. C. 19 L. J. (Ex.) 201. THE ship, never absent from a marine policy of insurance, Of the ship. has already engaged attention in a previous chapter as one of the subjects of such a policy. We are now to consider it as the depôt, vehicle, or instrument, in relation to other subjects of insurance while in port, or while in the course this. of transit by water from port to port. In this view, its Naming the ship in the importance in modern commerce cannot be exaggerated. policy. But we are not speaking of ships in general. A policy at one period of its existence or another is ever specific and definite as to the ship or the ships involved in the contract. By far the more important reason for this definite speci- Reason for fication of the vessel lies in this, that it is thereby the means of specifically identifying the subject of the particular insurance. As merchants in buying and selling distinguish the goods about which they are bargaining from all other similar goods, say, by the warehouse that contains them, the assured and the underwriter take the same easy method of pointing out the subject of the risk about which they are contracting. The master's name is also added as a further means of particularly designating the cargo, by thus specifically distinguishing the ship in question from all other ships of the same name and build. Accuracy, therefore, as to both is so material to the contract, that after all is executed in due form, it may turn out to be no contract whatever, merely because error herein having misled the mind of assured and underwriter each to a different subject, has thereby prevented agreement between. them. But as it is only for the purpose of identification that such accuracy is important, misdescription by name, if it be not the occasion of error as to the subject designated, does not invalidate the policy. This is a general principle of law; nil facit error nominis cum de corpore constat. Accordingly, in our common policies, after the names of the ship and master, come the words, or by whatsoever other name or names the same ship, or the master thereof, is or shall be named or called." The following cases, although some of them are alio intuitu, are applicable to show the degree of accuracy practically required on this subject. An insurance on ship was effected as on a ship called "The Leopard;" it appeared that the name of the ship was in fact The Leonard, and that she had never been called The Leopard; it being proved, however, that the ship lost was the same that the underwriters intended to insure, the Court held that the variance did not affect the validity of the policy.2 An American ship called The President was described in the policy as "the good ship called 'The American ship President; "" but as it clearly appeared that the error was a blunder of the broker's clerk, and that the ship lost was really that which the underwriters meant to insure, the error was held immaterial.3 And the decision of the Court was the same in another case, where a ship really called by the 1 See 1 Emerigon, c. vi. s. 2, p. 160; "Error nominis alicujus navis non attenditur, quando ex aliis circumstantiis constat de navis identitate." 2 Hall v. Molineaux, before Lee, C. J., 17th Dec. 1744, cited in 6 East, 385. 3 Le Mesurier v. Vaughan, 6 East, 382. Spanish name of Las Tres Hermanas, was described in the policy by an English translation of the name, as "The Three Sisters."1 When an insurer initials a slip, say for 50007., on hides, by ship or ships, he engages in effect to insure the goods by any ship on which they are loaded; and if he afterwards at the request of the broker initial a slip for 24457. on hides by "The Socrates," making no inquiry as to the particular ship proposed, this second slip being expressly made in order to be substituted for the slip "by ship or ships" already mentioned, the jury are justified in finding that, regardless of what might be the name of the ship, he meant to insure the goods at a premium already fixed in the first slip, by the vessel on which these goods were really shipped.2 It happened that at another interview between other clerks of the broker and underwriter respectively, a policy for 1217. on part of these same goods by the Socrates was negotiated; and reference was made to Veritas, at the time lying on the desk, for the name and description of the ship, and when it was found that Veritas contained the "Socrates, Albertson,' a new Norwegian ship, and the "Socrate, Jean Card," an old French ship, the underwriter's clerk asked whether it was the Norwegian ship that was proposed, and he was told by the other he thought it was. The event showed that the goods had been loaded on the French ship the "Socrate, Jean Card," and that there was a total loss; it was held that the underwriter was not liable on the policy for this loss, for he had been misled, and that upon an inquiry materially affecting the amount of the premium, into insuring goods by the Norwegian ship Socrates.3 Again, events of the time at sea of a character to make the underwriter cautious about undertaking risks, or about undertaking them except at an enhanced premium, may have come to hand; he may have heard of storms, of losses, and 1 Clapham v. Cologan, 3 Camp. 382. 2 Ionides v. Pacific Fire and Mar. Ins. Co., L. R., 6 Q. B. 674; L. R., 7 Q. B. 517. 3 Ibid. of facts affecting particular ships; and consequently it is natural that he should be able to identify the proposed ship in order to apply this information.1 Moreover, there are degrees of seaworthiness. Emerigon,2 accordingly, has employed himself in pointing out the varieties of build and size specifically designated by technical words, as (in our language) by ship, bark, brig, schooner, sloop, and the like; and he has truly said that if the underwriter is fraudulently misled by the designation adopted for the vessel to suppose that he is insuring goods on board a ship when the vessel intended is in size and rig a sloop, the policy would be void. But as the generic designation ship is adopted, probably invariably, in English policies for vessels of every build, and therefore as synonymous with vessel, the question can hardly arise except as involving a charge of concealment or misrepresentation on the part of the assured, which, if proved, would invalidate the policy, or, as accompanied with circumstances of such a deviation from custom as ought to put the underwriter upon inquiry. There are means now of information in existence on this and cognate topics, such as, with all the formal particularity of Frenchmen and French administration, could hardly have been anticipated even in Emerigon's time. The public register of English shipping established by statute, and the classification of shipping registered at Lloyd's, afford the amplest means of information of the most pertinent kind.3 As the risk on any ship is very greatly aggravated by her being employed as a privateer or letter of marque, Emerigon considers, upon the principle above laid down, that a ship intended to be so employed ought to be described accordingly in the policy by which she is insured: but it is quite certain that if it were verbally represented to the underwriter that such was her purpose and destination, that would be sufficient 1 See Bates v. Hewitt, L. R., Q. B. 595. 2 2 1 Emerigon, c. vi. s. 3, pp. 162, 163, 164. 3 The continental Veritas supplies similar information. 4 1 Emerigon, c. vi. s. 4, p. 165. |