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The ship was lost about eight o'clock in the morning. Held, that the underwriter was liable (e).
$ 138. A policy of insurance, made in the United Kingdom, must be stamped when effected. If it is not, it can only be admitted in evidence on the payment of 1001. penalty, as well as the proper stamp duty (f); and the premiums or brokerage cannot be recovered by the broker, or if paid to him, can be recovered back by the insured (9).
A foreign policy of insurance need not be stamped ; unless it be made for or by an English insurance broker, or unless the loss be payable or recoverable here. In these two cases the policy may be stamped within two months after its arrival in this country (n).
$ 139. Sue and The sue and labour clause in a policy (c) makes it lawful labour clause. for the assured or his servants to try to lessen or prevent
imminent loss of the thing insured, without his being liable for any loss resulting therefrom. It also enables the assured to recover all monies he expended in endeavouring to prevent or lessen the loss (k), provided the expenditure was reasonably necessary (1).
The clause gives the assured no right to recover for expenses incurred in preventing any peril not insured against, or even a peril insured against, unless the safety of the thing insured is endangered thereby (m).
General average and salvage do not come within either
(e) Blackhurst v. Cockell, 3 T. R. 360.
(f) 39 & 40 Vict. C. 6, s. 2; 30 & 31 Vict. c. 23, s. 9.
(9) 30 & 31 Vict. c. 23, s. 16.
(h) 28 & 29 Vict. o. 96, s. 16; 33 & 34 Vict. c. 97, s. 117 (2).
(1) For form of the clause, see
(k) Kidston v. Empire Ins. Co., L. R., 1 C. P. 635; see
" Cases" (1) at end of this g.
(1) Lee v. Southern Ins. Co., L. R., 5 C. P. 397; see “Cases” (2) at end of this s.
(m) Great Indian Peninsular Rail. Co. v. Saunders, 2 B. & S. 266 (S. C.); Meyer v. Ralli, 1 C. P. D. 358.
the words or the object of the sue and labour clause (n). Therefore, if the assured elect to repair instead of abandoning, after damage sustained from perils of the sea, he will not be entitled to recover under the clause in question any salvage expenses. He will, however, be entitled to recover up to the amount insured, the cost of the repairs, with the usual reduction of one-third new for old. The mere fact that that amount will exceed the amount payable on a total loss with benefit of salvage, and will equal the whole sum insured, will not affect the rule (n).
CASES. 1. The S. was chartered for a voyage from the Chincha Islands to the United Kingdom, with a cargo of guano, at a freight payable on arrival at the port of discharge. The owners insured the charterfreight by a policy containing the usual sue and labour clause, and a warranty"free from particular average, also from jettison, unless the ship be stranded, sunk, or burnt.” During the voyage, the ship, having encountered a severe storm, put into Rio, so damaged by the perils of the sea as to be not worth repairing; she was accordingly sold. The owners gave no notice of abandonment, but the guano was landed and warehoused at Rio, at a cost of 1001., and subsequently forwarded by the master to Bristol at an agreed freight of 2,4671. This the owners paid, receiving from the charterers the full charter-freight. Held, that the shipowners were entitled to recover, under the sue and labour clause, from the defendants the 1001., the cost of the landing, &c., and the 2,4671., the freight paid by them (o).
2. A ship, with a cargo of palm-oil for Liverpool, was stranded near P., in Wales. It became necessary to land the cargo there, which was properly done. The ship was temporarily repaired on the beach, and then towed to Carnarvon, the nearest port. She was there repaired, so as to be thoroughly seaworthy for the completion of the voyage. The oil was forwarded to Liverpool by railway, at a cost to the shipowner of 2121. The oil might have been kept at P. till the ship was repaired, and then reshipped at T., a place seven miles distant from P. This would have been a reason
(n) Aitchison v. Lohre, 4 App. Cas. 755; 49 L. J., Q. B. 123; 41 L. T. 323; 28 W. R. 1; Dixon v. Whitworth, Dixon v. Sea Ins. Co.,
49 L, J., C. P. 408; 43 L. T. 365 ; reversing, 4 C. P. D. 371.
(0) Kidston v. Empire Marine Ins. Co., L. R., 1 C. P. 535.
able course to adopt, and would have cost only 701. Held, that under the sue and labour clause the shipowner could only recover 701.(p).
3. The steamship Crimea was insured for 1,2001. Encountering very bad weather, she was in danger of sinking, but was rescued by a steamer, which obtained in the Irish Admiralty Court 8001., as salvage. The owner did not abandon, but elected to repair. The cost of repairs, after deducting one-third new for old, amounted to 1,2001. Held, the underwriter was liable to that amount, though it was the full sum he had insured; but that he was not liable to pay any part of the 8001. awarded as salvage (2).
§ 140. Effect of Any material alteration without the consent of the alterations in parties will vitiate the policy, provided such alteration policy.
be made after the policy is signed, for till then the policy is only in fieri (r). Accordingly if the insured, after sub
» scription by the underwriter, strikes out from the body of the policy the specified time of sailing, and inserts in the margin a different time for sailing, which the underwriter does not sign, the underwriter will be discharged from all liability ($).
The policy, if altered after execution even with the consent of the parties, will be avoided unless a new stamp be impressed on it; except the alteration is merely to rectify a mistake (t). Any such alteration must be signed by the parties assenting. Where the policy does not, through inadvertence, express the intention of the parties, a court of equity will reform it (u).
If the alteration is made with the assent of some only of the parties, it will only be binding on them, and not on
(v) Lee v. Southern Ins. Co., L. R., 5 C. P. 397.
(9) Aitchison v. Lohre, supra.
(r) Robinson v. Tobin, 1 Stark.
vol. i. 857, and notes; Campbell v. Christie, 2 Stark. 64; see
" Cases" (4) at end of this g.
(8) Fairlie v. Christie, 7 Taunt. 416.
(1) 30 & 31 Vict. c. 23, s. 10.
(u) Motteaux v. London Ass. Co., 1 Atk. 545; Henkle v. Royal Ex. Ass. Co., 1 Ves. sen. 317.
the others who have not signed the alteration (v). In cases where the alteration is immaterial, the policy will not be thereby vitiated (x); however, those parties only who consent to the alteration will be bound by the instrument as altered, the others who do not consent remaining liable on their original contract (y).
1. A ship was insured from Virginia to Rotterdam, with liberty to call at a port in England. After the policy had been executed by the underwriters, the destination of the voyage was altered to Hull instead of Rotterdam. A memorandum of this alteration was endorsed on the policy. Hull is situate two degrees north of the course between Virginia and Rotterdam. The ship was lost. Held, that the alteration vacated the policy as to all the underwriters, with the exception of those who signed the endorsement (2).
2. A ship was insured from Liverpool to Africa, during her stay there and back, with liberty to sell, barter, exchange, load and reload. After the policy was executed, the insured inserted the words "and trade” in the risk, without the consent of one of the underwriters, though the others had assented thereto. Held, an immaterial alteration, as the ship had liberty to trade without the introduction of these words (a).
3. In a policy “at and from A. and B.” the words “both or either" were inserted without the consent of the underwriters. Held, that the policy was not thereby vitiated (6).
4. A policy from Calmar to Portsmouth was altered with the consent of some of the underwriters, by inserting or Weymouth” after Portsmouth. One of the underwriters was ignorant of the alteration when it was made, but on being informed of it, said that he would not take advantage of the alteration. Held, nevertheless, that the insured could not recover as against him (c).
J. B. Moore, 5, per Richardson, J.
(3) Laird v. Robertson, 4 Browne's Parl. Cas. 488.
(a) Sanderson v. Symons, 4 J. B. Moore, 42.
(6) Clapham v. Cologan, 3 Camp. 381.
(c) Campbell v. Christie, 2 Stark.
Construction of policy. Custom of trade.
§ 141. Parol evidence is not admissible to alter or control the meaning of a policy. But it is admissible in order to explain it, if technical or ambiguous, according to the custom of trade; for every well-known usage of maritime trade is considered to form part of every marine policy, unless expressly excluded by its terms (d).
A usage of trade to control the terms of a policy must be reasonable, well settled by long and continued practice (e), notorious and general (s). However, it need not be uniform (f).
Any custom not amounting to a usage of trade, for instance, the usage of a single firm or house (e. g. Lloyd's), will not bind the contracting party; unless either he be proved to have had knowledge of it, or he must be presumed on account of his business to be cognisant of it (g).
The printed and usual parts of the policy will be controlled by any special clauses in writing (1). So words added at the foot or in the margin of a policy, will apply to any part of the policy, and control the meaning of such part (i).
CASES. 1. Parol evidence has been admitted, for the purpose of explaining a policy, to prove that the Gulf of Finland is deemed by merchants part of the Baltic (k).
2. A custom of the port of London, which made underwriters liable, in the case of a jettison of cargo, only for the share of the
(d) Aquilar v. Rodgers, 7 T. R. Andrew v. Robinson, 3 Camp. 199; 421; Yates v. Pym, 6 Taunt. 446; Sweeting v. Pearce, 7 C. B., N. S. Hall v. Janson, 4 E. & B. 500; 449; see “ Cases" at end of this $; Udhe v. Walters, 3 Camp. 15; Ward v. Harris, 8 L. R., Ir. (Q. B.) Dickenson V. Jardine, L. R., 3 C. P. 365 (C. A.). 639; Hoskins v. Pickersgill, i Park, (1) Per Lord Ellenborough, C.J., Ins. 97; see
(1), (2), in Robertson v. French, 4 East, 130, (3) and (4) at end of this g.
136; Gumm v. Tyrie, 34 L.J., Q. B. (e) i Marshall, Ins. 179.
124 ; 6 B. & S. 298. (f) Vallance v. Dewar, 1 Camp. (i) Robertson v. French, 4 East, 503.
130, 140; Haughton v. Ewbank, 4 (9) Gabay v. Lloyd, 3 B. & C. Camp. 88. 793 ; Scott v. Irring, 1 B. &Ad. 605; (k) Udhe v. Talters, 3 Camp. 15.