Слике страница
PDF
ePub

price. After complete delivery of the cargo, the vendors assigned the policy to the plaintiffs. Held, that as it had not been either expressly or impliedly stipulated that the policy should pass to the purchasers on the sale of the linseed, the interest remained in the vendors till delivery; that on delivery on board the lighters the vendors' interest ceased and the policy lapsed; and consequently that no interest under it could pass to a subsequent assignee (t).

action cannot

$ 182. Though in effecting a policy of marine insurance the The slipagreement is in practice made by the slip, i. e., a memoran- be brought dum containing the terms of the proposed insurance, and on. initialed by the underwriters, yet such slip is void, and an action cannot therefore be brought on it. For no contract for marine insurance is valid unless it is expressed in the policy (u).

However, the slip is admissible as evidence in certain cases, as, for example, to explain the intention of the parties, or to fix the date of the contract (x).

§ 183. If the insured recover compensation for the loss both Underwriter from the underwriter and also from a wrongdoer, by damages

re

entitled to whose act or negligence the loss was occasioned, he must covered from hand over the damages he recovers from the wrongdoer ---When.

a wrongdoer to the underwriter. For a marine policy is essentially a contract of indemnity, though not of mere indemnity (y).

On similar grounds, if the insured has already recovered the amount of his loss from the wrongdoer, he cannot bring an action against the underwriter on the policy.

[ocr errors]

(1) North of England P. O. Co. v. Archangel Mar. Ins. Co., L. R., 10 Q. B. 249; 44 L. J., Q. B. 121; 32 L. T. 561; 24 W. R. 162.

(6) 30 & 31 Vict. c. 23, s. 7; Parry v. The Great Ship Co., 4 B. & S. 556 ; Ionides v. The Pacific Ins. Co., L. R., 6 Q. B. 674; Corry v. Patton, L. R., 9 Q. B. 577; Her

mano v. Mildred, 9 Q. B. D. 530; 51
L. J., Q. B. 604; 47 L. T. 318;
30 W. R. 862 (C. A.).

() Ionides v.Pacific Ins.Co., L. R.,
6 Q. B. 674.

(y) North of England Ins. Co. v. Armstrong, L. R., 5 Q. B. 244; Aitchison v. Lohre, 4 App. Cas. 755; 49 L. J., Q. B. 123.

CASE. A ship insured being sunk, the underwriters paid the owner 6,0001. as compensation. Subsequently the owners recovered 5,0001. as damages from the wrongdoer. The ship was worth 9,0001. Held, that the insured must hand over the whole 5,0001. damages to the underwriters (z).

Re-insurance and double insurance.

1. Re-insurance.

§ 184. The underwriter can free himself from his liability on the policy by effecting a re-insurance of the property insured with other underwriters (a).

Re-insurance is a contract of insurance by which an insurer, with the object of relieving himself, either partly or entirely, from the risks he has undertaken, insures himself with other insurers in respect of the same subjectmatter, on the same risks and under the same conditions as those expressed in the original policy (). The premiums will be payable on the second policy, though the object insured had at the date of the second policy arrived safely at its port of destination (c).

The second policy need not, on its face, be expressed to be a re-insurance; an underwriter who has subscribed an insurance “on ship,” “on goods," &c. can re-insure by the same description (a).

The original assured will have no claim against the reinsurer, but only against the original insurer.

The re-insured must, to recover, produce the same evidence as the original insured would have to produce, in order to maintain an action against him (a).

If during the continuance of the risk the underwriter

(z) The North of England Iron S. S. Ins. Co. v. Armstrong, L. R., 5 Q. B. 244.

(a) 30 & 31 Vict. c. 23, s, 3, and sched. D., and s. 4; repealing 19 Geo. 2, c. 37, and 27 & 28 Vict. c. 56; Mackenzie v. Irhitworth, i Ex. D. 36 (C. A.).

() 2 Park, 418,423; 1 Emérigon,

c. viii. s. 14. p. 252.

(c) Bradford v. Symondson, 7 Q. B. D. 456 ; 50 L. J., Q. B. 582; 45 L. T. 364; 30 W. R. 27 (C. A.); see “Cases" (1) at end of

this s.

(d) Gledstanes v. The Royal Exch. Ass. Co., 34 L. J., Q. B. 30.

a

becomes insolvent, the insured may insure his property with another underwriter (e). If the owner insure his vessel or goods with two or 2. Double

insurance. more sets of underwriters, such double insurance is valid. Double insurance differs from re-insurance in that it is effected by the insured; while a re-insurance is a contract made by an underwriter to secure himself (f). The insured cannot, however, recover from the underwriters more than the amount of his loss, though he can recover the whole sum insured from any one or any one set of the underwriters (9).

Should he recover the full amount of his loss from any one or any one set of underwriters, that underwriter or that set of underwriters can claim contribution from the others (g).

The insured can only recover the amount agreed on in the policy, after deducting what he has received on other policies on the same thing; for payment on one of two policies on the same thing is a defence pro tanto to an action on the other, whether it be an open or valued policy (1). In the case of valued policies, only the sum stated to be the value can be recovered by the insured, whatever the aggregate amount covered by the various policies (i). This will be the rule, at all events, in cases where the same value is inserted in each policy (i).

Though a man by making a double insurance cannot recover a double satisfaction for the same loss, yet various persons may insure their various interests on the same thing, and each to the whole value. Thus, a master may insure for his wages, the shipowner for freight, one person

(c) 2 Park, Ins. 420.

(f) 2 Park, 423; Imperial Marine Insurance Co. v. Fire Insurance Corporation, 4 C. P. D. 166.

(9) Neucby v. Reid, 1 W. Bl. 416; Rogers v. Daris, 2 Park, 423.

(h) Bruce v. Jones, 1 H. & C. 769; see “Cases”' () at end of this f; Morgan v. Price, 4 Exch. 615.

(i) Irving v. Richardson, 1 Moo. & Rob. 153, per Lord Tenterden, C. J.; distinguishing Bousfield v. Barnes, 4 Camp. 228.

for goods, and another for bottomry; for such contracts made by each of them respectively will not fall within the idea of double insurance (j).

a

CASES. 1. An insurance company insured a cargo by a certain vessel lost or not lost for a certain voyage; and at a later date, thinking the vessel to be overdue, the company re-insured the same cargo and risk with the plaintiff. Before the re-insurance was effected the vessel and cargo had arrived safely at their port of destination; though that fact was unknown both to the plaintiff and the company. Held, that the policy having attached, the plaintiff was entitled to the premium at which it had been effected (k).

2. A shipowner effected on one of his vessels four different policies of marine insurance. In the respective policies the agreed value of the ship was stated to be 3,0001., 3,0001., 5,0001., and 3,2001. On a total loss occurring, sums were paid under the three former policies amounting to 3,1267. 138. 6d. The shipowner then brought an action on the fourth policy. Held, that as between himself and the underwriter of that policy, the value of the ship must be taken to be 3,2007., and that the shipowner was only entitled to recover on it the difference between that sum and the 3,1261. 138. 6d., already paid on the other policies (?).

() Godlin v. London Ass. Co., 2 Park, 425; 1 Burr. 489.

(k) Bradford v. Symondson, 7

Q. B. D. 456; 50 L.J., Q. B. 582; 45 L. T. 364; 30 W. R. 27 (C. A.).

(1) Bruce v. Jones, 1 H. & C. 769.

APPENDIX.

THE REGULATIONS FOR PREVENTING

COLLISIONS AT SEA.

Preliminary. Art. 1. In the following rules every steamship which is under sail and not under steam is to be considered a sailing ship; and every steamship which is under steam, whether under sail or not, is to be considered a ship under steam.

The Regulations for the prevention of collisions at sea must be strictly followed ; for under the Merchant Shipping Act, 1873 (36 & 37 Vict. c. 85, s. 17), actual necessity will alone excuse their non-observance. Even considerations of discretion and expediency, although skilfully acted on, will not justify any departure therefrom. (Stoomvart Maatschappy Nederland v. P. &0. Co., 5 App. Cas. 876; 43 L. T. 610; 29 W. R. 173.) In fact, no discretion has been left to the shipmaster, except in cases of very clear necessity; and therefore only in such cases is a shipmaster bound to exercise his discretion. (The Byfoged Christensen, The William Frederick, 4 App. Cas. 669; 41 L. T. 535; 28 W. R. 233.)

With regard to what will constitute a ship under steam within this rule, it has been held that a steam-tug lying to, with her engines stopped, is such a steamship under steam. (The Jennie S. Barker, 3 Asp. M. C. 42.)

Rules concerning Lights. Art. 2. The lights mentioned in the following Articles, numbered 3, 4, 5, 6, 7, 8, 9, 10, and 11, and no others, shall be carried in all weathers, from sunset to sunrise.

The fact of the lights going out by accident (The Saxonia, Lush. 410, 422, P. C.; The Sylph, 2 Spk. 75, 85; The Victoria, 3 W. Rob. 49; The Rob Roy, ib. 191), or of their being removed to be trimmed (The C. M. Palmer, 2 Asp. M. C. 94, P. C.), or of their being obscured by smoke (The Rona, 2 Asp. M. C. 182), will not excuse their absence. In a collision cause the ship carrying a wrong and misleading light will almost certainly be condemned.

« ПретходнаНастави »