« ПретходнаНастави »
$ 177. Where the underwriter establishes his non-liability on Return of the policy, he must return the premium to the insured if premiumthe risk has not commenced to run (e); unless, of course, there be an express stipulation to the contrary.
But where the risk covered by the policy is entire, and has commenced to run, the insured cannot claim the return of the premium, or of any part of it (s), unless the underwriter has expressly agreed to return it (9). Consequently, the premium cannot be claimed by the insured under a policy “at and from,” if the risk be entire, though the ship perish while in port waiting for her cargo (h).
So, if after starting on the voyage, the vessel deviates, though that will discharge the underwriter from all liability, under the policy, in the event of a loss from the date of the deviation, yet he will not be bound to return the premium (i).
Where a vessel insured from one port to another sails in an unseaworthy condition, the premium can be recovered by the insured. For the policy will be vitiated ab initio by the implied warranty of seaworthiness not having been complied with; and consequently the underwriter was never liable at all on the policy (j). Where, on the other hand, the vessel is insured at and from one port to another, the premium cannot be recovered; for the risk in this case will attach while the ship is at the port named (k).
Whenever the premium is entire or consists of one lump
(e) Routh v. Thompson, 11 East, 428; Henry v. Stani forth, 4 Camp. 270 ; Penson v. Lee, 2 B. & P. 330; Stevens on Av. 201.
(f) Tyrie v. Fletcher, 2 Cowp. 666 ; see “Cases” (3) at end of this $; Bermon v. Woodbridge, 2 Doug. 781; see “ Cases" (2) at end of this $; Langhorn v. Cologan, 4 Taunt. 330.
(9) Audley v. Duff, 2 B. & P. 111; see Cases” (1) at end of this s.
(1) Moses v. Pratt, 4 Camp. 297, per Lord Ellenborough, C. J.
(i) Tait v. Levi, 14 East, 481 ; Moses v. Pratt, 4 Camp. 297.
(3) Penson v. Lee, 2 B. & P. 330.
(k) Annen v. Woodman, 3 Taunt. 299; Meyer v. Gregson, 2 Park, 588;
“Case" (4) at end of this s.
In case of a policy on two or more voyages.
In case of a double in surance.
sum, the risk will be held entire. An entire premium can only be apportioned when the risks are so separated in the policy as to make it clear that distinct and separate risks were contemplated when the policy was effected (k).
If the fraud or misrepresentation of the underwriter has vitiated the policy, the premium must be returned to the assured (1)
When an insurance is in effect on two or more voyages, and one or more has been begun, the premium must be apportioned, and a proportionate part returned in respect of the voyage or voyages not yet commenced; for the risk in such an instance is not entire (m).
In the event of a double insurance, the insured will be entitled, in cases in which the premium is returnable, to a rateable return of the premium, proportioned to the amount by which the aggregate sum insured in all the policies exceeds the insurable value of the property at risk (»).
CASES. 1. A policy was effected on the Ceres, “at and from Oporto to Lynn, with liberty to touch at any ports on the coasts of Portugal, to join convoy, particularly at Lisbon ; at 12 guineas per cent., to return 61. if she sail with convoy from the coast of Portugal and arrive." The Ceres sailed from Oporto with convoy to Lisbon, from whence she was to proceed with the Lisbon trade under a larger convoy for England. During the voyage from Oporto to Lisbon the fleet was dispersed by a storm, and the Ceres, judging for the best, made for England, which she reached in safety. Held, that the sured was entitled to a return of premium (o).
2. A ship and its cargo were insured at and from Honfleur to the coast of Angola, during her stay and trade there, at and from thence to her port or ports of discharge in S. Domingo, and at and from S. Domingo back to Honfleur. After leaving Angola, the ship unnecessarily deviated and was subsequently captured. Held,
(k) Bermon v. Woodbridge, 2 Doug.781, 788, per Lord Mansfield, C. J.; see “ Cases” (2) at end of
(m) Stevenson v. Snow, 3 Burr. 1238, 1241 ; Long v. Allen, 2 Park, 589.
(n) Arnould, Ins. 1069.
(1) Duffell v. Wilson, 1 Camp.
that the contract was one and entire, and that as the loss happened after the commencement of the risk, the insured could not recover any part of the premium (P).
3. A policy was effected on a ship " at and from London to any port or place, where or whatsoever, for twelve months ... at 91. per cent., warranted free from capture and seizure by the Americans, and the consequences thereof.” The ship sailed from London, and was captured by an American privateer about two months afterwards. Held, that no part of the premium could be recovered, the risk being entire, and not divisible (1).
4. A vessel had been insured at and from Jamaica to Liverpool, warranted to sail on or before the 1st of August. The ship did not sail till September, and was lost during her voyage. Held, that the premium could not be reclaimed by the insured (r).
§ 178. If the consideration for the insurance be illegal, as, When pre
mium not for example, in the case of a wager policy, the premium returnable. cannot be recovered by the insured (s). Therefore, a premium paid on an insurance intended to cover trading with an enemy cannot be recovered from the underwriter, although the underwriter is under no obligation to make good any loss occurring (t). So, if an insurance be made without interest, the insured will not be entitled to claim the repayment of any premium he may have paid (s). Where, however, the risk has never attached, the insured can recover the premium he has paid (u).
A return of the premium cannot be claimed by the insured if he or his agent had been guilty of fraudulent misrepresentation or concealment (c), or if he make a material alteration in the policy after it is subscribed, as by tearing off the seal (x), or if the contract of insurance
(p) Bermon v. Woodbridge, 2 Doug. 781.
(9) Tyrie v. Fletcher, 2 Cowp. 666.
(r) Meyer v. Gregson, 2 Park, 588.
(8) Loury v. Bourdieu, 2 Doug. 468.
(0) Vandyck v. Hewitt, 1 East, 96.
(u) Tappenden v. Randall, 2 B. & P. 467; Aubert v. Walsh, 3 Taunt. 276; and see Ch. IX. § 174, p. 320.
(1) Wilson v. Ducket, 1 Park, 328; 3 Burr. 1361; Tyler v. Horne, 1 Park, 329; Chapma v. Fraser, ib. 329.
(2) Langhorn v. Cologan, 4 Taunt. 329, 332 ; per Lord Mansfield, C. J.
be illegal (y), even though the risk never commenced to run.
But if the return of the premium were demanded before the commencement of the voyage, and some formal renunciation of the contract were communicated to the under. writer before action brought, the insured will be entitled to the return of the premium, for a locus pænitentiæ will in such a case be allowed him (ə).
CASE. A policy was effected at and from the ship's port or ports of loading in the river Plate to London, on the ship and goods. The river Plate was within the limits of the South Sea Company's charter, within which it was illegal to trade without the licence of that company
At the commencement of the risk, and up to the date of her loss, the ship was without a licence from the South Sea Company, though the owners of the ship and goods procured a licence as soon as they could, and before hearing of the loss. The licence was drawn up so as to relate to a time antecedent to the loss. Held, nevertheless, that the insured were not entitled to a return of the premium (a).
$ 179. Return of If only part of the goods insured are shipped, the premium for short interest premium must be apportioned, and a part of the premium or short
corresponding to the value of the goods not put on board profits;
must be returned. This is generally termed the return of premium for short interest (). So a return of premium for short profits must be made in a similar case when profits
are insured (c). for over
If in the case of an open policy on goods or freight the insurance. goods and the freight be over-insured, i.e., in excess of the
, interest of the assured, a portion of the premium corre
(y) Wilson v. R. Ex. Ass. Co., 2 Camp. 623, 626; Couie v. Barber, 4 M. & S. 16; see “ Case" at end of this s; Andrée v. Fletcher, 3 T. R. 266.
(3) Palyart v. Leckie, 6 M. & S.
(a) Cowie v. Barber, 4 M. & S. 16.
(6) Eyre v. Glorer, 16 East, 218; Horneyer v. Lushington, 3 Camp. 85, 90; Fisk v. Masterman, 8 M. & W. 165 ; see “ Case" at end of this s.
(c) Eyre v. Glover, 16 East, 218.
sponding to the excess must be returned. This is generally termed a return for over-insurance (d).
But in the case of an over-insurance by a valued policy, no portion of the premium is reclaimable by the assured (e); for in the case of a valued policy the underwriters might, in the event of a total loss, be called upon to pay the whole sum insured in such policy, though that sum be greatly in excess of the value of the goods insured.
Where the policy has been subscribed by more than one underwriter, each will have to contribute rateably towards the return of any premium returnable in proportion to the sums insured by each respectively (a).
CASE. An insurance was effected on the 12th of April on a cargo of cotton, then at sea, by five several policies, at the rate of fifty guineas per cent. News of the vessel's safety having arrived, a further insurance was, on the 13th, bona fide effected by six different policies at ten and five guineas per cent. The two insurances, when taken together, exceeded in amount the value of the cargo insured, but the former by itself did not. IIeld, that the assured could claim a return of the premium on the amount of the overinsurance, to which the underwriters who had subscribed the policies made on the 13th of April were to contribute rateably according to the sums insured by them respectively, the amount of over-insurance being ascertained by taking into account all the policies; but that no premium was returnable in respect of the policies underwritten on the 12th (f).
$ 180. In all cases in which the premium is returnable, the Rights and underwriter can deduct one half per cent., unless the policy liabilities of
underwriters contain an express stipulation to the contrary, or unless he when pre
mium return. be guilty of any fraudulent misrepresentation or conceal- able. ment (9).
Where by several policies made bona fide a sum is, through mistake, wrong information, or some other inno
(d) Fisk v. Masterman, 8 M. & W. 165 ; see “ Case" at end of this g.
(e) Stevens on Av. 200.
(f) Fisk v. Masterman, 8 M. & W. 165.
(9) Stevens on Av. 206.