voyage marked out in the policy must be always exactly pursued; for the slightest deviation from it, except under circumstances of absolute necessity, will render the insurance ineffectual; and that whether the loss be occasioned by the deviation or not, and whether the ship resume her proper course or not, before the loss happens (s). Every marine policy too is made under an implied warranty, that the ship shall at the time of her setting sail be seaworthy, that is, in a condition to perform the voyage; and if the fact turns out to have been otherwise, the assured is not entitled to recover in the event of a loss, whether the loss have proceeded from the defects in her condition, or from any other cause (†). The assured is entitled to claim upon the policy, not only where he is able to give direct proof of loss, but where he can show circumstances from which a loss may reasonably be presumed, as that a reasonable time has elapsed for receiving intelligence of the vessel since her departure, and that none has been received; for it will be inferred, under such circumstances, that she has foundered (u). But where direct proof of the calamity is given, it may turn out that it is either a total, or a partial (called also an average), loss (x). (s) See Elliott v. Wilson, 7 Bro. Parl. Cas. 459; Davis v. Garrett, 6 Bing. 716; Brown v. Tayleur, 4 Ad. & El. 241; Hamilton v. Sheddon, 3 Mee. & W. 49; Oliverson v. Brightman, 15 Law J. (Q. B.) 274; Ashley v. Pratt, 16 Mee. & W. 471; S. C. (in error), 1 Exch. 257. (t) Park's Ins. 221, 229; see Annen v. Woodman, 3 Taunt. 299; Holdsworth v. Wise, 7 Barn. & Cress. 794; Harrison v. Douglas, 3 Ad. & El. 396; Hollingsworth v. Brodrick, 7 Ad. & El. 40; Small v. Gibson, 16 Q. B. 128; Barr v. Gibson, 3 Mee. & W. 390; Dixon v. Sadler, 5 Mee. & W. 414; see Phillips v. Nairne, 4 C. B. 343; Michael v. Tredwin, 17 (u) 1 Park's Ins. 106; Koster v. Reed, 6 Barn. & Cress. 19. (x) As to "total" and "partial" loss, vide Shawe v. Felton, 2 East, 109; Davy v. Milford, 15 East, 559; Dyson v. Rowcroft, 3 Bos. & Pul. 474; Wilson v. Forster, 6 Taunt. 25; Hedburg v. Pearson, 7 Taunt. 154; Sarquy v. Hobson, 2 Barn. & Cress. 7; 4 Bing. 131; Mordy v. Jones, 4 Barn. & Cress. 394; Knight v. Faith, 15 Q. B. 649; Roux v. Salvador, 3 Bing. N. C. 281, in error; Young v. Turing, 2 Man. & Gr. 593, in error; Hills v. London Assurance Company, A total loss, again, may be either actual or constructive (y); the first, where the thing insured is absolutely destroyed, so as to remain no longer in specie, or so damaged that it cannot ever arrive in specie at the port of destination; the second, where the injury it has sustained (though short of that above supposed) is so great, as to make it reasonable that the assured should claim as for a total loss, leaving the underwriter to recover what he can out of the shipwreck or other calamity (z). And this case seems to arise, whenever the nature of the loss is such as to afford reasonable ground to the assured for relinquishing the voyage altogether, as where the goods are so damaged as not to be worth the expense of being forwarded (a). But in order to claim as for a total loss, when in fact it is so by construction only, the assured is bound formally to cede or abandon all his remaining right in the property to the underwriter; and unless notice be given him of such abandonment, within a reasonable time after intelligence of the circumstance is received, the loss will be treated as a partial one only (b). In every case of partial loss, the underwriter is liable to pay such proportion of the sum he has subscribed, as the damage sustained by the subject of insurance bears to its whole value at the time of insurance; in the case of a total loss, he is liable to the entire amount of his subscription (c). The underwriter is also, by the effect of a special clause 5 Mee. & W. 569; Irving v. Manning, 2 C. B. 784; Benson v. Chapman, 8 C. B. 950; Navone v. Haddon, 9 C. B. 30; Rosetto v. Gurney, 11 C. B. 176; Moss v. Smith, ib. 94. (y) 3 Chit. Com. L. 511; Roux v. Salvador, 3 Bing. N. C. 281. (z) Park, Ins. 143, 146; Roux v. Salvador, ubi sup. (a) Hudson v. Harrison, 3 Brod. & Bing. 97; Roux v. Salvador, ubi sup. (b) See Mitchell v. Edie, 1 T. R. 608; 2 Marsh. 508; Dean v. Hornby, 3 Ell. & Bl. 180. As to abandonment, vide Hudson v. Harrison, 3 Brod. & Bing. 97; Roux v. Salvador, ubi sup.; Phillips v. Nairne, 4 C. B. 343; Chapman v. Benson (in error), 5 C. B. 330. (c) Lewis v. Rucker, 2 Burr. 1172. The 3 & 4 Will. 4, c. 42, s. 29, empowers the jury, in actions on policies of insurance, to give damages in the nature of interest, over and above the sum recoverable under the policy. usually introduced into policies (d), made liable to indemnify the assured in respect of any payment he may have properly made for salvage (e), (that is, for the defence, safeguard or recovery of the ship or goods); or in respect of general average (f); which latter subject is of a kind to require some further explanation. The term general (or gross) average is used to express the contribution, which, by the commercial law of every country in Europe (g), is made by the proprietors in general, of ship or cargo, towards the loss sustained by any individual of their number, whose property has been sacrificed for the common safety; as where, in a storm, jettison is made of any goods or sails, or masts are cut away, levandæ navis causa (h). But to found this obligation, it is essential that the ship should be eventually saved; and that the sacrifice so made should have in fact conduced to her preservation; and also that any part of the cargo so thrown overboard should have been laden at the time in a proper and usual manner; for it has been decided that goods stowed upon the deck (unless where a special custom authorizes that method) are not entitled to the benefit of general average (i). By our law, not only the ship and cargo, but also the freight (k), is liable to contribute to a general average; and the way of (d) Le Cheminant v. Pearson, 4 Taunt. 367. (e) 3 Chit. Com. L. 502. As to salvage, see 17 & 18 Vict. c. 104, ss. 458, 484. (By 17 & 18 Vict. c. 120, sched., the former statute as to salvage, 1 & 2 Geo. 4, c. 76, is with the exception of sects. 1-5, 15, 16, 18, repealed, and another previous statute on the same subject, 9 & 10 Vict. c. 99, wholly repealed.) (f) Le Cheminant v. Pearson, ubi sup. (g) Park, Ins. 121. (h) As to general average, vide Birkley v. Presgrave, 1 East, 220; Plummer v. Wildman, 3 Mau. & Sel. 482; Power v. Whitmore, 4 Mau. & Sel. 149; Briggs v. Merchant Traders' Ship, &c. Association, 13 Q. B. 167; Hall v. Janson, 4 Ell. & Bl. 500. (i) Gould v. Oliver, 4 Bing. N. C. 134; 2 Man. & Gr. 209. The practice of loading timber on deck in voyages from our ports in North America, or in the settlement of Honduras, to any port in the United Kingdom, at certain periods of the year, is prohibited by statute. See in 8 & 9 Vict. c. 93, ss. 24, 25. (k) Da Costa v. Newnham, 2T R. 407. settling the contribution among the several parties, on the arrival of the ship at the port of destination, is to ascertain the proportion that the value of the property sacrificed bears to the entire value of the whole ship, cargo and freight (such estimate being made according to the net value of the several articles, if there brought to sale), and to make the property of each owner (including the property sacrificed) contribute to the common loss, in the proportion so found (1). A party obliged to make payment of such quota to the owner of the property sacrificed, is entitled, upon the ground already stated, to seek compensation from the underwriters with whom he may have effected an insurance upon the property liable to the contribution. In Fire and Life Insurances, the insurers are commonly large companies of persons, either united as bodies corporate, or associated together in private partnership; and their policies, much more precise in their form than those of marine insurers, distinctly define the several incidents and consequences of the contract, so as to leave comparatively little to the construction of the law. The substance of the contract in these several cases is as follows: : A fire policy (m) engages, that, in consideration of a single or periodical payment of premium (as the case may be), the company will pay to the assured such loss as may occur by fire to his property therein described, within the period or periods therein specified, to an amount not exceeding a particular sum fixed for that purpose by the policy. (1) See Abbott on Shipping, 348, 3rd edit. (m) As to a fire policy, see Shaw v. Robberds, 6 Ad. & El. 75; Whitehead v. Price, 2 C. M. & R. 447; Mayall v. Mitford, 1 Nev. & Per. 732; Pim v. Reid, 6 Man. & Gr. 1; Marks v. Hamilton, 7 Exch. 323; Sittem v. Thornton, 3 Ell. & Bl. 868; Glen v. Lewis, 8 Exch. 607; Mason v. Harvey, ib. 819; Waters v. Monarch Fire and Life Assurance Company, 5 Ell. & Bl. 870; Stokes v. Cox, 1 H. & N. 320. See also 22 Geo. 3, c. 48; 50 Geo. 3, c. 35; 5 & 6 Vict. c. 79, s. 20. As to licences and duties in the case of fire insurances, see 19 & 20 Vict. c. 22. A policy on life (n) usually engages, that in consideration of a periodical payment of premium, the company will pay, on the death of some individual, or on his death within a limited period (as the case may be), a certain sum of money therein specified; that is, will pay it to the party effecting the insurance (supposing it to be effected by a stranger, having an interest in the life insured), or to the executors or administrators of the party whose life is insured, supposing him to effect it for his own benefit. As to policies of insurance, of whatever description, it is a rule that the assured must have an interest in the subject-matter of the insurance (either in his own right, or at least as trustee), equal to the amount of the sum insured; and that beyond the extent to which he possesses an interest the contract will not be effectual (0); and that the interest must also be one of a pecuniary kind (p). With respect to life policies, however, it is to be understood, that a man is always considered as having an interest in his own life (g), of a kind that justifies his effecting an insurance upon it to any amount; and a policy effected on the life of his debtor, is also valid to the extent of the sum due. That the assured should have such an interest as this rule requires is in marine and fire policies indicated by the very terms of the contract, which purports to (n) As to a life policy, see Halford v. Kymer, 10 Barn. & Cress. 724; Duckett v. Williams, 4 Tyr. 240; Wainwright v. Bland, 1 Mee. & W. 32; Huckman v. Fernie, 3 Mee. & W. 505; Geach v. Ingall, 14 Mee. & W. 95; Borradaile v. Hunter, 5 Man. & Gr. 639; Clift v. Schwabe, 3 C. B. 437; Dormay v. Borradaile, 5 C. B. 380; Moore v. Woolsey, 4 Ell. & Bl. 243; Dalby v. India and London Life Assurance Company, 15 C. B. 365. (o) See Rhind v. Wilkinson, 2 Taunt. 237; Cousins v. Nantes (in error), 3 Taunt. 513; Sparkes v. Marshall, 2 Bing. N. C. 761; Stockdale v. Dunlop, 6 Mee. & W. 224; Devaux v. J'Anson, 5 Bing. N. C. 519; Henson v. Blackwell, 14 Law J. (C. C.) 329; Ellis v. Lafone, 8 Exch. 546. (p) Halford v. Kymer, 10 B. & C. 724. (q) But not in that of his son or daughter, by reason merely of the relationship, Halford v. Kymer, ubi sup. |