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accounts, without the delay of waiting for the termination of every outstanding risk. The reinsurers are entitled to make the same defence and the same objections which might be asserted by the original insurers in a suit on the same policy. If the reinsured defends the case in the first in
? stance, he is entitled to recover from the reinsurer the entire loss sustained by hiin, and all the costs and expenses which he has incurred, provided they are reasonable in their nature, unless there was no ground of defence, or the reinsurer did not sanction the contestation, either expressly or by implication.3 It has been also held, that the reinsured is not bound to pay a loss before calling on the reinsurer, and that the latter is liable for the whole amount reinsured, although the first insurer is insolvent, and can pay but a percentage of the claim.
Although, if reinsurance is effected by an agent without authority his act can be ratified, yet it must appear that it was the intention of the agent when the policy was effected, to cover the interest of the party seeking to adopt his act.5
1 Reed v. Cole, 3 Burr. 1512; Union Mut. Ins. Co. v. Comm. Mut. Mar. Ins. Co., 2 Curtis, C. C. 524, 19 How. 318; Hastie v. De Peyster, 3 Caines, 190; Woodruff v. Columbus Ins. Co., 5 La. Ann. 697; Merry r. Prince, 2 Mass. 176; Oliver v. Greene, 3 Mass. 133. See also, Mercantile Mut. Ins. Co. v. State Mut. F. & M. Ins. Co. of Penn., 25 Barb. 319, cited ante, p. 58, n. 2. “Reinsurance is a valid contract at the common lar. It is forbidden in England, except where the insurer shall be insolvent, become bankrupt, or die, by the statute 19 Geo. 2, c. 37, ♡ 4.” Per Bronson, J., New York Bowery F. Ins. Co. v. New York F. Ins. Co., 17 Wend. 359, 362.
2 New York Marine Ins. Co. v. Protection Ins. Co., 1 Story, 458.
* New York Marine Ins. Co. v. Protection Ins. Co., 1 Story, 458. See also, Hastie v. De Peyster, 3 Caines, 190.
* Hone v. Mutual Safety Ins. Co., 1 Sandf. 137, 2 Comst. 235.
5 Alliance Mar. Ins. Co.v. La. State Ins. Co., 8 La. 1. In this case goods were insured in England on a voyage at and from New Orleans to Liverpool. The ship, after sailing, put back to New Orleans, and it became necessary to take out and store the cargo. The consignee of the vessel, not knowing of the insurance in England, procured the cargo to be insured against fire while on land for the benefit of whom it might concern. A loss by fire having taken place, the English company paid it and sought to recover from the New Orleans company, on the ground that it was a reinsurance, but the court beld the action could not be maintained.
OF EXPRESS WARRANTIES.
These are stipulations or promises of the assured, in the policy, that certain things exist or shall exist, or have been, or shall be done. It is to be noticed that these are warranties; and this circumstance, on the general principles of the law of contracts, excludes many inquiries which might otherwise be made. Thus, the warranty is equally binding, and a breach of it equally fatal, whether the thing warranted be material or immaterial. Nor is it any legal excuse for the breach, or any protection against its consequences, that it was not intended by the insured, and cannot be imputed either to his design or his fault; and the acts of all employed by him or of any other person, if they violate the warranty, are equivalent to a breach of it by himself. Because the question is not by whose agency is the warranty broken, but whether it be broken, for that avoids the contract. And it must be not only substantially but strictly
? complied with; "nothing tantamount will do,” says Lord Mansfield. But that will be a sufficiently strict and literal compli
1 Blackhurst v. Cockell, 3 T. R. 360, per Buller, J.; Newcastle F. Ins. Co. v. Mac. morran, 3 Dow, 255, 262.
2 Duncan v. Sun F. Ins. Co., 6 Wend. 488.
3 Pawson v. Watson, Cowp. 785. In De Hahn 2. Hartley, 1 T. R. 343, 2 T. R. 186, the ship was warranted to sail “from Liverpool with fourteen six-pounders, swivels, small arms, and fifty hands or upwards.” She had only forty-six men on board, when she sailed from Liverpool, but took six more at the Isle of Anglesca, only
ance or performance, which is so if the warranty is construed and interpreted according to usage and the actual intention of the parties. And sometimes this strict compliance operates in favor of the assured. A question has arisen, where different subjects are insured by the same policy, whether the contract is an entirety to such an extent that a false warranty as to one subject would render the whole contract a nullity. We give in the notes the result of adjudication upon this subject.2
six hours afterwards. The loss was in no way owing to the deficiency. Held, that the policy was void. Lord Mansfield said: “ A warranty in a policy of insurance is a condition or a contingency, and unless that be performed, there is no contract. It is perfectly immaterial for what purpose a warranty is introduced; but, being inserted, the contract does not exist, unless it be literally complied with.” In Sawyer v. Coasters' Mutual Ins. Co., 6 Gray, 221, a vessel was insured for one year from the 21st of September, 1847. The vessel sailed from New York on the 21st of August, 1847, with grain in bulk bound to Ballisidore in Ireland, and on the 24th and 25th of September, while entering the harbor, received the injuries complained of. The policy contained the clause : “Said vessel not allowed to carry grain in bulk across the Atlantic.” It was contended, on the part of the plaintiffs, that the warranty was to be construed literally, and that when the policy was effected the vessel was entering the harbor, and did not afterwards cross the Atlantic with grain in bulk. But the court held that the policy did not insure the vessel if laden with grain in bulk, on a voyage across the Atlantic, and that at the time of the loss, she was carrying grain in bulk on
such a voyage.
1 In Bean v. Stupart, 1 Doug. 11, the ship was warranted to have "thirty seamen, besides passengers.” The word seamen was held to include “the steward, cook, surgron, some boys, and apprentices."
In Smith v. Empire Ins. Co., 25 Barb. 497, it was held that where the same policy insures a house and furniture, although at a separate valuation, and the policy is void as to the building by reason of a false warranty as to incumbrances thereon, it is void as to the furniture also, although there is no incumbrance on the furniture. This case overrules Trench v. Chenango Co. Mut. Ins. Co., 7 Hill, 122, which case was also doubted in Wilson v. Herkimer Co. Mut. Ins. Co., 2 Seld. 53. In Clark v. New England Mut. Fire Ins. Co., 6 Cush. 342, two buildings were separately insured at a separate valuation in the same policy. One of the buildings was alienated by the insured, and it was contended that this avoided the policy as to both. Fletcher, J., said : “But the shop was valued separately, and was insured separately, as a separate, distinct, independent subject of insurance, though insured in the same policy. The alienation of the shop would no doubt avoid the policy pro tanto, and only pro tanto. The tavern. house and the shop being insured separately, the alienation of one would no more affect the insurance on the other, than if they had been insured in separate policies.” In Brown v. People's Mut. Ins. Co., 11 Cush. 280, real and personal estate were insured at a separate valuation in the same policy. One premium note for the whole insurance was given, and the policy secured a lien on the whole property insured to secure the payment of assessments. The real estate was incumbered by a mortgage, which was not disclosed to the insurers, and it was held that the policy was void as to
A warranty must be a part of the policy; and may be written upon any part of it, but not upon other papers or documents, unless it is expressly referred to as a warranty in the policy. And any explicit allegation or assertion of a part may be sufficient as a warranty thereof. As, for example, where a vessel is described as the “good American ship called the Rodman," this is a warranty that the ship is American.? And a statement that a vessel was in port on a certain day has been held to be a warranty of that fact. It has been also held that a statement that the goods belong to the plaintiffs, American citizens," is a warranty of their neutrality, and not a statement merely. In one case the insurance was stated to be for the account of M. Mackay, Jr., of Boston. This was considered as equivalent to a warranty that he was owner, and as he was known to the parties as an American residing in Boston, it was held to be a warranty that the property was American. But the statement must be direct, and not collateral. As where a vessel is stated to be called the American ship President, this is no warranty that she is an American vessel.6 Nor is the calling a vessel by an English name a warranty that she is English. Nor a stipulation that the insurers are not to be liable for damage to or from the sheathing of a vessel, a warranty that she is sheathed.S
the whole amount insured. The court said: “The contract being entire, and one premium note being given, the lien for the security of the same was affected by the misstatement."
1 Bean v. Stupart, 1 Doug. 11; Kenyon v. Berthon, 1 Doug. 12, note, where it is held that a statement is not a warranty unless written upon the policy. See also, Jennings v. Chenango Co. Mut. Ins. Co., 2 Denio, 75; Glendale Woolen Co. r. Protection Ins. Co., 21 Conn. 19; Routledge r. Burrell, 1 H. Bl. 254; Williams v. New Eng. Mut. F. Ins. Co., 31 Maine, 219. See also ante, p. 51, 52.
2 Barker v. Phonix Ins. Co., 8 Johns. 307 ; Atherton v. Brown, 14 Mass. 152; Higgins v. Livermore, 14 Mass. 106 ; Lewis v. Thatcher, 15 Mass. 431 ; Francis v. Ocean Ins. Co., 6 Cow. 404 ; Vandenheuvel v. United Ins. Co., 2 Johns. Cas. 127; Goix v. Low, 1 Johns. Cas. 341; Murray v. United Ins. Co., 2 id. 168; Vandenheuvel v. Church, 2 id. 173, noto.
3 Kenyon r. Berthon, 1 Doug. 12, note.
Nor is the description of the risk “at and from New York to the port of Sisal,” a warranty that there is any port at Sisal. And the calling the vessel in the policy " the good ship A,” is no warranty of her sea-worthiness. It has been held in Louisiana, in a case where a vessel had sustained an injury, and insurance was effected “on condition that the damage done (mentioning it) be repaired, and the vessel be put in as good order as she was previous to that accident,” that her being repaired was not a condition precedent to the attaching of the policy, but meant that the insured should repair the vessel before she was exposed to the perils of the sea. We must, however, express our doubts of the correctness of this decision. And if the recital of a fact could bave no relation whatever to the risk, it would seem not to be a warranty, but merely a representation. It has been held, that a non-compliance with the exact requirement of a warranty, at the commencement of a risk, avoids the policy, although afterwards and before loss it is complied with, and all the other risks are wholly distinct from that to which the warranty related, even if the breach is caused by one of the perils against which there is insurance.
1 De Longuemere v. N. Y. Firem. Ins. Co., 10 Johns. 120. And in Muller v. Thompson, 2 Camp. 610, where the insurance was declared to be "on the cargo, being 1,031 hogsheads of wine,” it was held that this did not amount to a warranty that the whole cargo consisted of wine, but merely that the insurance should attach upon that part of the cargo which consisted of the 1,031 hogsheads of wine.
* Small 2". Gibson, 16 Q. B. 141, 3 Eng. L. & Eq. 299, 305.
: Hyde v. Miss. M. & F. Ins. Co., 10 La. 543. While the vessel was being repaired, the river rose, accompanied by a storm, and the vessel sunk. The underwriters were held liable for a total loss.
4 Mackie r. Pleasants, 2 Binn. 363. The insurance in this case was effected on “the good British brig called The John.” The ressel was insured at the regular sea risk premium, and there was a written memorandum at the foot of the policy, that the insurance was to be against perils of the sea only, and was to end on capture. The vessel was not duly registered as a British brig, but there was evidence that her captain was a subject of Great Britain. It was also shown to be the custom in Philadelphia to insert all special warranties in a separate clause, and that this did not contain any warranty of nationality. It was held on all these facts, that the vessel having been lost by a peril of the sea, the plaintiff was entitled to recover. The fact that the nationality of the vessel was not stated in the usual warranty clause, was considered as of great weight in determining the intention of the parties, althcugh it was held that a warranty could be in any part of the policy.
5 Rich v. Parker, 7 T. R. 705, 2 Esp. 615; Goicoechea v. La. State Ins. Co., 18 Mart. La. 51.
6 Hore v. Whitmore, 2 Cowp. 784. In 1 Phillips on Ins. $ 770, the rule is otherwise