Marine Insurance;-Double Insurance. Reinsurance. The written parts must control. Ct. of Ap-valued policy upon specific articles forming a peals, 1853, Leeds v. Mechanics' Ins. Co., 8 N. Y. (4 Seld.), 351. 196. Wager policy. A memorandum at the foot of a policy purporting to be on goods, stated that it was an insurance on profits; that no other proof of interest was to be required but the policy; and if the goods did not arrive, the insured was to recover for a total loss; warranted free from average, and without benefit of salvage. Held, a wager policy. Supreme Ct., 1801, Juhel v. Church, 2 Johns. Cas., 333. 197. Though the words "policy to be proof of interest," or the want of an averment of interest, are not evidence that a policy is a a wager policy, these circumstances, taken in connection with the fact that the captain was owner of the vessel, sufficiently show that it is such. Supreme Ct., 1805, Clendining v. Church, 3 Cai., 141. 198. On a wager policy, the loss, to entitle the plaintiff to recover, should be absolutely total. Ib.; 1826, Buchanan v. Ocean Ins. Co., 6 Cow., 318. 199. Commissions. A supercargo was, by the agreement under which he acted, to receive as compensation a gross sum out of the return cargo, but, on the return voyage, the ship was driven into an intermediate port, and the cargo sold from necessity. Held, that his right to commissions having been lost by the failure of the voyage, he was entitled to recover the amount of the compensation from the insurer. Ct. of Errors, 1806, N. Y. Ins. Co. v. Robinson, 1 Johns., 616; affirming S. C., 2 Cai., 357. 200. Illicit trade. The court will not declare void a policy on a voyage for trade contravening merely the positive regulations of another country. Supreme Ct., 1799, Gardiner v. Smith, 1 Johns. Cas., 141. part of the cargo, with the usual clauses as to prior insurance, the first policy ought to be considered as attaching, in the first instance, upon that part of the cargo not covered by the latter, in order to leave aliment for the latter. Supreme Ct., 1811, Kane v. Commercial Ins. Co., 8 Johns., 229; followed, 1813, Minturn v. Columbian Ins. Co., 10 Id., 75. 203. If in such case the value fixed in the valued policy exceeds the cost of the goods, the insurers are nevertheless concluded by it, and the insured having recovered for the loss of the goods their value under the open policy, the insurers by the second policy are liable still for the residue of the value fixed in the valued policy. Supreme Ct., 1811, Kane v. Commercial Ins. Co., 8 Johns., 229. 204. The plaintiffs were insurers on the cargo and freight, and the defendants were, severally, insurers on the ship. After capture, abandonment, and restoration of the ship and cargo, the net proceeds of the cargo were applied by the master and consignees to defray the expense of the necessary repairs of the ship, and also, in arming her unnecessarily. Held, that the insurers on the ship were separately liable for a proportion of the net proceeds of the cargo, applied to the necessary expenses of repairing the ship, but not for that applied to arming or increasing her complement of men; and the sum which one was liable for, should bear the same proportion to the whole sum so applied, as the sum so subscribed by them to the policy, bore to the whole amount underwritten on the ship. Supreme Ct., 1806, United Ins. Co. v. Scott, 1 Johns., 106. 205. Subsequent. Goods were insured from Philadelphia to Hamburgh, by a policy dated May 29, 1798, containing a written clause, that the insurer should return fifteen per cent., in case an insurance had been effected in Europe; and containing also a printed clause, that if the insured shall have made any other insurance, prior in date to the policy, the insurers should be answerable only for deficiency, .&c., and should return the premium on so much of the sum insured, as they were, by such prior insurance, exonerated from; and in case of any insurance upon the premises, subsequent in date to the policy, the insurers should be answerable for the full sum subscribed, &c., and be entitled to retain the Marine Insurance;-Concealment. premium in the same manner as if no such Cas., 1. Followed, 1800, Skidmore v. Desdoity, subsequent insurance had been made. Held, 2 Johns. Cas., 77; Juhel v. Rhinelander,* Id., that by the true construction of the policy, 120. any other insurance subsequent to the one in question, was not to affect it. Supreme Ct., 1802, N. Y. Ins. Co. v. Thomas, 3 Johns. Cas., 1. 206. Under the American clause,-providing that in case of a subsequent insurance, the insurer shall be liable to the full amount of his subscription, without right to contribution, and shall retain the whole premium, as if no subsequent insurance were made,—the insurer cannot claim contribution, although the amounts insured by the two policies exceed the insurable interest; but the second insurer is answerable only for the difference between the first subscription and the value of the interest insured.*. Ct. of Errors, 1835, American Ins. Co. v. Griswold, 14 Wend., 399. 207. Double insurances regarded as one. Howard Ins. Co. v. Scribner, 5 Hill, 298. 208. Reinsurance. An accepted application for reinsurance on cargo, on the excess of risks, the applicant might have over $50,000,not to exceed $15,000,-does not render the reinsurer liable unless the applicant's risks on the cargo alone, exceed $50,000. Evidence of a usage to take into account insurance on ship and freight, also in computing the excess in such cases, is not admissible. Supreme Ct., Sp. T., 1857, Mercantile Mutual Ins. Co. v. State Mutual Fire & Marine Ins. Co., 25 Barb., 819. 4. Concealment. 210. If a subject of a belligerent country is beneficially interested in the property warranted neutral, his interest should be disclosed to the insurer. Supreme Ct., 1801, Murray v. United Ins. Co., 2 Johns. Cas., 168. 211. Prize-ship. It is not necessary to disclose that the vessel is a prize-ship, where there is no warranty, or representation to the contrary. Supreme Ct., 1803, Kemble v. Bowne, 1 Cai., 75. 212. How long in port. It is not necessary to disclose how long a vessel had been in the port at and from which she is insured, unless her having been there previous to the insurance had enhanced the risk; for where a vessel has been long in port previous to insurance, the risk does not commence till some act is done towards equipping her, or only from the day on which she is stated in the policy to have been in safety in the port from which she was to sail. When stated to have been there on a certain day, it must mean that she was there in safety, and that no preceding accident was to be made good by the insurer. Ib. 213. Storm. The insured, at the time of effecting the insurance, had information that eleven hours after the sailing of the vessel there was a violent storm at the port of departure, but only communicated to the insurer, generally, that there had been blowing weather and severe storms on the coast after the vessel sailed. Held, that this was such a concealment as vitiated the policy. Every fact 209. Contraband. The insured is not and circumstance which can possibly influbound to disclose to the insurer that the ence the mind of the insurer in determining goods insured are contraband of war, as such whether he will insure, and at what premium, goods are lawful within the meaning of the is material to be disclosed, and a concealment policy. The principle that every fact in the thereof will vitiate the policy. A concealknowledge of the insured, which enhances the ment is to be considered, not with reference ordinary risk, and which would, if disclosed, to the event, but to its effect at the time of enhance the premium, ought to be communi-making the contract. The question, therefore, cated to the insurer, is limited to circum- must always be, whether, under all the circumstances which the insurer is not presumed stances, there was, at the time the policy was nor bound to know; and he is presumed to underwritten, a fair representation, or a conknow that the neutral trade undergoes no cealment, either designed and fraudulent, or, abridgment or abandonment in war. Su-though not designed, varying materially the preme Ct., 1799, Seton v. Low, 1 Johns. object of the policy, and changing the risk understood to be run. Supreme Ct., 1804, Ely v. Hallett, 2 Cai., 57. * But see a different rule suggested, 2 Pars. Mar. L., 97, 98, note, where this decision is viewed as to be limited to the case of a time policy on a trading voyage. VOL. III.-28 Affirmed, Ct. of Errors, 1802, 2 Johns. Cas., 487. Marine Insurance ;-Representations. 220. In the absence of a warranty or rep 214. Omission to disclose general intelligence contained in a public gazette is a resentation, a false clearance is immaterial, material concealment, although the insurers were subscribers to such gazette. Supreme Ct., 1809, Dickenson v. Commercial Ins. Co., Anth. N. P., 92. and need not be disclosed. Supreme Ct., 1803, Barnewall v. Church, 1 Cai., 217; and see Le Roy v. United Ins. Co., 7 Johns., 343. 5. Representations. 215. Matters known by both. If the vessel has on board a document, usual and 221. Proposals. When a policy is clear, customary in the course of the trade in which certain, and unambiguous as to the voyage inshe is engaged, although it may expose her to sured, propositions asking the rate of insurcapture and condemnation, it need not be dis-ance cannot be resorted to as representations closed. The insured may be innocently silent to show that the voyage insured was meant as to those things which the insurer ought to to be restricted to that described in the propknow. [Park, 183; 1 Burr., 348.] Matters osition. A representation is a collateral statewhich are presumed to be equally in the knowledge of both parties, need not be disclosed. [3 Burr., 1605; Doug., 238; Park, 196.] Supreme Ct., 1811, Le Roy v. United Ins. Co., 7 Johns., 343. ment of such facts or circumstances relative to the proposed adventure, and not inserted in the policy, as are necessary for the information of the insurer, to enable him to form a just estimate of the risk. Such proposals are merged in the policy which specifies the voyage, nor are they admissible to vary the terms of the policy. Supreme Ct., 1804, Vandervoort v. Smith, 2 Cai., 155. 222. Several insurers. A representation 216. Notifying loss. A vessel, of which the master was part-owner, was lost about ninety miles from the port of destination, where other part-owners resided, who, after the loss, and before notice of it, had insurance made. Held, that the master not having di-to one insurer is not evidence of a representarected insurance, nor being apprised of any intention to insure, was bound to exercise ordinary diligence only; and he having good reason to expect that he should arrive at the port before a letter would by mail, his omis- 223. Ownership. An insurance for account sion to communicate by letter did not avoid of A. is equivalent to a representation that A. the policy. Supreme Ct., 1812, Andrews . is owner, and he being an American, residing Marine Ins. Co., 9 Johns., 32. Compare Liv-here, and so known to the parties, at the time ingston v. Delafield, 1 Id., 522. 217. Fact warranted. The insured is not bound to communicate a fact as to which there is a warranty, express or implied. Ct. of Errors, 1823, N. Y. Firemen Ins. Co. v. De Wolf, 2 Cow., 56; affirming S. C., 20 Johns., 214. 218. A policy on cargo is not vitiated by the insured's not stating in his application who owns the vessel, where the fact is not material to the risk, and does not affect the premium. So held, where he truly stated, in answer to inquiry, that the vessel was good. Supreme Ct., 1852, Chase v. Washington Mutual Ins. Co., 12 Barb., 595. tion to a subsequent insurer on a different policy, though on the same vessel, and against the same risks. Supreme Ct., 1807, Elting v. Scott, 2 Johns., 157. of effecting the policy, the insurance is clearly to be considered as made on American property. Supreme Ct., 1802, Kemble v. Rhinelander, 3 Johns. Cas., 130. 224. As common carriers may carry, in either their own or others' vessels, and still be liable as carriers to the owners of the goods, their giving the name of the vessel when they obtain insurance, is not a representation that the vessel belongs to themselves. Supreme Ct., 1852, Chase v. Washington Mutual Ins. Co., 12 Barb., 595. 225. Evidence of title. A ship was insured from France to the United States, under 219. What is a material concealment, and a representation that she was French built what constitutes barratry, considered. Wal- and owned by American citizens, and that the den . N. Y. Firemen Ins. Co.,* 12 Johns., 128. | bill of sale would be on board. Held, that * The judgment was reversed on the ground that these were questions of fact for the jury, 12 Johns., 518. the bill of sale was a material paper, and though on board, if it was forgotten or concealed, so that it was not produced on a capture, there was a failure of a substantial com Marine Insurance;-Warranties;-Ownership. Neutrality. Illicit Trade, &c. of Errors, 1807, Sleght v. Hartshorne, 2 Johns., 531; reversing Sleght v. Rhinelander, 1 Id., 192. pliance with the representation. Supreme Ct., 1802, Murray v. Alsop, 3 Johns. Cas., 47. 226. Ballast. A representation that the vessel would sail in ballast,-Held, substan- 233. Permitted to entry. A vessel bound tially complied with, though she had a trunk to Havana, with negroes on board, was inof merchandise and ten barrels of gunpowder sured, the policy containing a warranty, free on board. Supreme Ct., 1804, Suckley v. Del- from loss, if not permitted to entry in conseafield, 2 Cai., 222. quence of having negroes on board. By a regulation of the port the vessel was obliged, because of having slaves on board, to stop in the outer harbor, until permission could be obtained to enter the inner harbor, and, without unreasonable delay, was there wrecked. Held, that the voyage insured against was 227. How long out. A representation to the insurer that the vessel had been out about nine weeks, when, in fact, she had been out ten weeks and four days, is not, in the absence of fraud, a material misrepresentation, provided the latter period is within the usual time of the voyage. Supreme Ct., 1800, Mac-to end at the inner harbor, and that the warkay . Rhinelander, 1 Johns. Cas., 408. ranty intended a custom-house entry, which, not having been refused, the event provided against by the warranty had not occurred, and the insured were entitled to recover. Supreme Ct., 1814, Dickey v. United Ins. Co., 11 Johns., 228. The insured represented—"I have information of her sailing, and she has been out, this day, twenty-six days." Held, that by a fair construction, although she had been twenty-seven days out, the difference was immate-358. rial. Supreme Ct., 1805, Williams v. Delafield, 2 Cai., 329. 229. "Since." A representation that a man has been a naturalized citizen since a particular year, is not to be construed as a representation that he was so in that year. Supreme Ct., 1808, Coulon v. Bowne, 1 Cai., 288. 230. Temperance. A representation that the master was a careful and steady man, and that he had good officers and a good crew, and that no spirits were allowed on board, Held, a simple representation that the vessel was intended to sustain the character of a temperance ship. Spirits may be carried in her as cargo, or the master's perquisites, but not for the use of the officers and crew during the voyage. Ct. of Errors, 1839, Irvin v. Sea Ins. Co., 22 Wend., 380. 6. Warranties. 234. Use of ports. The warranty forbid the insured from using any port in the Gulf of Mexico, with one exception. The vessel was refused admission to that port until she had first entered another one, which she accordingly did. Held, a breach of the warranty. N. Y. Superior Ct., 1857, Stevens v. Commercial Mutual Ins. Co., 6 Duer, 594. 235. Liens. A marine policy stated the insurance to be on account of A., loss, if any, payable to B., and the vessel was warranted by the insured free from all liens. B. held a mortgage of the vessel, subject to two prior mortgages. Held, that the insurance was upon the vessel, and not upon the interest of B., the mortgagee, and, therefore, the existence of the prior mortgages was a breach of the warranty, and fatal to a recovery upon the policy. Ct. of Appeals, 1859, Bidwell ₺. Northwestern Ins. Co., 19 N. Y. (5 Smith), 179; S. P., 1858, Grosvenor v. Atlantic Fire Ins. Co., 17 N. Y. (3 Smith), 391. A. Ownership. Neutrality. Illicit Trade, &c. 236. Ownership. If the homeward cargo 231. A representation in the written in- is stated to have been purchased with the structions to the broker, that the vessel in-proceeds of the outward cargo, and it appears sured is American,-Held, equivalent to a warranty. Supreme Ct., 1801, Vandenheuvel v. Church, 2 Johns. Cas., 173, note. that the former cost more than the latter sold for, the insured must show that the excess was also the product of neutral funds. Supreme Ct., 1804, Blagge v. N. Y. Ins. Co., 1 Cai., 549. 232. Sea-letter. A policy stated that "the vessel sails under a sea-letter, without a register; property warranted American." Held, 237. A mere description of a vessel in the that parol evidence was admissible to explain policy as an American vessel, is an implied what document was meant by sea-letter. Ct. warranty that she is American property. Su Marine Insurance ;-Warranties;-Ownership. Neutrality. Illicit Trade, &c. preme Ct., 1800, Goix v. Low,* 1 Johns. Cas., good faith domiciled here, is neutral, within 341; 1801, Murray v. United Ins. Co., 2 Id., the warranty. Ct. of Errors, 1802, Johnston 168; Haskin v. N. Y. Ins. Co., Id., 173, note; v. Ludlow, 2 Johns. Cas., 481; S. C., 1 Cai. Vandenheuvel v. United Ins. Co.,* Id., 127; Cas., xxix. S. C., 2 Cai. Cas., 217; 1811 [citing, also, 3 Bos. & P., 201, 506–531; 6 East, 382], Barker . Phoenix Ins. Co., 8 Johns., 307. 244. Naturalization. Where the subject of a belligerent State emigrates to this country, flagrante bello, and becomes naturalized here, 238. A warranty that the property is Amer- this country being neutral, and the emigration ican, means that it is not only so in fact, but not being prohibited by the laws of his parent that it shall be clothed with the requisite evi- State, and not being for the fraudulent purpose dence of its American character, for the pur- of masking mercantile projects under a neutral pose of protection, and in reference to the law flag, he becomes a citizen of this country with of nations, under the sanction of which the reference to the enemy of the parent State, voyage in question was to be conducted. [1 and such naturalization will support a warJohns. Cas., 365; 2 Id., 148.] Supreme Ct., ranty of neutral property. Ct. of Errors, 1811, Barker v. Phoenix Ins. Co., 8 Johns., 307. 1802, Duguet v. Rhinelander, 2 Johns. Cas., 239. Assignment. If the insured assigns a 476; S. C., 1 Cai. Cas., xxv.; reversing S. C., part of the subject to a citizen of a belligerent 1 Johns. Cas., 360, and overruling Jackson v. power, it is a breach of the warranty of neu-N. Y. Ins. Co., 2 Id., 191. trality. It is not an answer to say that the 245. That merely being in an enemy's condemnation was not on this ground, or that country does not render one a subject of that this was after capture; the loss is not to be country within the rule. Supreme Ct., 1802, consummated until condemnation. Supreme Murray v. Alsop, 3 Johns. Cas., 47. Ct., 1804, Goold v. United Ins. Co., 2 Cai., 73. 240. Neutrality. The character of the property is to be determined by the domicil of the owner; for persons having a domicil in a foreign country are subject to the State, and obliged to defend it. Supreme Ct., 1800, Arnold v. United Ins. Co.,† 1 Johns. Cas., 363; S. P., 1803, Jenks v. Hallet, 1 Cai., 60. 246. Assignment. If the insured, having warranted the neutrality of the property, voluntarily transfers it to the subject of a belligerent, he cannot recover on the policy. Supreme Ct., 1801, Jackson v. N. Y. Ins. Co., 2 Johns. Cas., 191. 247. A warranty of neutrality imports, not merely that the property is neutral, but 241. The consul of a neutral State, resident that it shall be accompanied during the voyin a belligerent country, and embarking in age with all the accustomed documents to commerce there, is not neutral within the insure it respect, as such, within the law of warranty. Supreme Ct., 1800, Arnold v. Uni-nations. Supreme Ct., 1804, Blagge v. N. Y. ted Ins. Co., 1 Johns. Cas., 363. 242. A representation or warranty of neutrality, requires the property to be wholly neutral. If one of the belligerents had a vested interest, whether partial or entire, legal or equitable, if such as might be enforced in some of the courts of any country, the risk is thereby increased, and the warranty not complied with. Supreme Ct., 1801, Murray v. United Ins. Co., 2 Johns. Cas., 168. Ins. Co., 1 Cai., 549. Followed, 1817 [citing, also, 8 Johns., 307; 5 East, 99, 398], Coolidge . N. Y. Firemen Ins. Co., 14 Johns., 308. 248. The same principle will require that it be unaccompanied with any document that shall compromit its neutral character. Supreme Ct., 1804, Blagge v. N. Y. Ins. Co., 1 Cai., 549. 249. A passport from a particular government, carried by the vessel as a protection 243. The subject of a belligerent State, in against its cruisers,-Held, to be no violation * These judgments were reversed, on the ground that the sentence was not evidence of a condemnation for that reason. Goix v. Low, 2 Johns. Cas., 480; Vandenheuvel v. United Ins. Co., Id., 451. † Affirmed, Ct. of Errors, 1801, 1 Johns. Cas., 872, note, but no opinions given. ↑ Affirmed, on other points, Ct. of Errors, 1804, 1 Cai. Cas., 43. of neutrality, and not to affect the national character of the vessel bearing it. It may be considered as a mere clearance. Ct. of Errors, 1804, Hallett v. Jenks,* 1 Cai. Cas., 43; affirming S. C., 1 Cai., 60. 250. Enemy's license. The mere sailing The judgment was affirmed, 8 Cranch, 219. |