policy B. was running, was totally destroyed by fire, it was held that the assured might recover, under policy A., the partial loss as it would have been estimated at the expiration of policy A.; and, also under policy B., the value as a total loss. Lidgett v. Secretan, L. R., 6 C. P. 616. Where, however, during the continuance of one risk there is a partial loss followed by a total loss, the underwriter is liable for the latter only; although he may also be liable under the suing and labouring clause (vide ante, p. 428); S. C., L. R., 6 C. P. 625. The certificate of an agent of Lloyd's is not admissible to prove the amount of damage sustained by goods, though the defendant is a subscriber to Lloyd's. Drake v. Marryat, 1 B. & C. 473. Where a policy contained a clause, "the said ship, &c., goods, merchandise, &c., for so much as concerns the assured by agreement between the assured and assurers in the policy, are and shall be valued as under," the two last words being added in writing; and, some way further down in the policy was written 1300l., and in the body, "on freight free from capture, seizure, &c. ;" it was held this was not a valued policy. Wilson v. Nelson, 5 B. & S. 354; 33 L. J., Q. B. 220.

In a valued policy, the risk on the goods was to commence on the loading thereof 24 hours after ship's arrival at the coast of Africa; a considerable part of the cargo was not shipped at the time of a total loss, and the part shipped was not equal to the value put upon the goods in the policy-it was held that the valuation was opened, and that the assured was only entitled to recover a proportion calculated on the part of the cargo shipped at the time of the loss. Rickman v. Carstairs, 5 B. & Ad. 651. A similar principle was adopted in Tobin v. Harford, 18 C. B., N. S. 528; 34 L. J., C. P. 37, Ex. Ch.; and Denoon v. Home and Colonial Assur. Co., L. R., 7 C. P. 341. On a policy on freight, the ship having actually earned full freight, though not that intended for her, the assured cannot recover for the delay and expense as a partial loss. Brocklebank v. Sugrue, 1 M. & Rob. 102.

The amount recoverable depends on the value of the thing insured, the sum insured, and the amount of loss; and as the contract of marine insurance is a contract of indemnity merely, where there are several policies on the same risk, and the assured has been paid on some of the policies, he can only recover, on the one in suit, such an amount as with the sums already received will give him indemnity against the loss actually sustained. In ascertaining this loss, in an action on an open policy, the true value of the thing assured is the criterion. But, on a valued policy, the assured can only recover to the amount that the thing is valued in the particular policy; and if he has already received that value on another policy, he cannot recover anything further, although the true value and loss be beyond what he has already received. Bruce v. Jones, 1 H. & C. 769; 32 L. J., Ex. 132.

Where by one policy a ship was insured from B. to C., and for 30 days after mooring at C.; and the owners, on hearing the ship had arrived at C., effected another insurance at and from C. to B.; and the ship was during the currency of both policies totally lost at C.; it was held that the second policy was in substitution of the first. Union Marine Insur. Co. v. Martin, 35 L. J., C. P. 181.

Where there is an insurance of cargo against jettison, and goods are jettisoned, the underwriters must pay the whole amount insured, without deducting the general average contributions the insured is entitled to receive from the owners of the ship and the rest of the cargo. Dickenson v. Jardine, L. R., 3 C. P. 639. When the underwriters have paid the insurance, they are entitled to stand in the place of the insured with respect to general average contributions. Ibid. So, where a ship A. has

been lost by a collision with a ship B., and the underwriters have paid the full amount of a valued policy on A., they are entitled to receive the damages recovered in the Court of Admiralty against the owners of B. for the loss of the ship; N. of England Assur. Assoc. v. Armstrong, L. R., 5 Q. B. 244; see also Commercial Union Assur. Co. v. Lister, L. R., 9 Ch. 483; Simpson v. Thomson, 3 Ap. Ca. 279, D. P., and cases cited post, p. 443; but not the damages recovered for the loss of freight; Sea Insur. Co. v. Hadden, 13 Q. B. D. 706, C. A.; though it is otherwise where the insurance is on the freight. Dufourcet v. Bishop, 18 Q. B. D. 373. Where a sum is given to the shipowner for the damage he has sustained, as a pure gift, the underwriter cannot claim it. Burnand v. Rodocanachi, 6 Q. B. D. 633, C. A.; 7 Ap. Ca. 333, D. P. As to how the loss is to be calculated when the insured goods get so mixed with other goods like them that they cannot be identified, see Spence v. Union Marine Insur. Co., L. R., 3 C. P. 427, cited ante, p. 425.

The freight of goods was insured, and the goods were necessarily removed from the ship to allow of repairs being made to her, and they were then forwarded to their destination by rail; the goods might have been transhipped at a much less cost; it was held, that the probable expense of such transhipment was recoverable under the suing and labouring clause. Lee v. S. Insur. Co., L. R., 5 C. P. 397.

Under a policy, effected by the plaintiffs, on their lighters in the Thames, to include all losses, damages, and accidents amounting to 201. and upwards in each craft to goods carried by the plaintiffs as lightermen, and from which losses, &c., the plaintiffs might be liable to the owners thereof; the underwriter is liable to pay the whole loss, without regard to the value of the property at risk. Joyce v. Kennard, L. R., 7 Q. B. 78.

Excepted risks "free from average."] We have incidentally seen that there are often clauses excepting certain risks. Thus, there is ordinarily a memorandum by which certain goods are "warranted free from average (i.e., partial loss), "unless general, or the ship be stranded" (ante, p. 422). An insurance with a warranty, "free from particular average," is equivalent to an insurance against total loss and general average, only; and in such a case, if a ship be disabled from continuing her voyage owing to a peril insured against, and the subject of insurance be forced to be landed, and expense is properly incurred in sending it on by another ship; that is particular average, and the insured cannot recover. Gt. Indian Peninsula Ry. Co. v. Saunders, 1 B. & S. 41; 30 L. J., Q. B. 218; 2 B. & S. 266; 31 L. J., Q. B. 206, Ex. Ch.; Booth v. Gair, 15 C. B., N. S. 291; 33 L. J., C. P. 99. But, this warranty does not prevent a recovery, under the suing and labouring clause, of expenses incurred in preserving the subject-matter of insurance, and averting a loss; Kidston v. Empire Marine Insur. Co., L. R., 1 C. P. 535; L. R., 2 C. P. 375, Ex. Ch.; in such case the whole expense is recoverable and not a proportionate part only. Dixon v. Whitworth, 4 C. P. D. 371; reversed in C. A. on another point, W. N., 1880, p. 43, E. S. But, only such expenses as were incurred in endeavouring to avert a total loss can be recovered thereunder. Meyer v. Ralli, 1 C. P. D. 358. Salvage awarded against the ship in the Admiralty Court is not recoverable under this clause: Lohre v. Aitchison, 4 Ap. Ca. 755, D. P.; nor, the costs of the proceedings in that court; Dixon v. Whitworth, supra; nor, the expense of a refit to enable the ship to complete her voyage. S. C.

Where the insurance was on a ship and cargo, with a warranty "free from average or claim from jettison or leakage, unless consequent on

stranding, sinking, or fire," and the ship, during the voyage, by bad weather, became leaky, and having put into port was unable to proceed, and the ship and goods were sold, the assured was held entitled to recover as an average loss. Carr v. R. Exch. Assur. Co., 5 B. & S. 433; 33 L. J., Q. B. 63.

There is not a total loss of part, but only particular average, where some bales of insured silk were so damaged as to make it prudent to sell them, if a portion of each bale might have been saved and sent home at a moderate expense, retaining its saleable character as silk. Navone v. Haddon, 9 C. B. 30; 19 L. J., C. P. 161. And, where memorandum goods of the same species are shipped, whether in bulk, or in packages, not expressed by distinct valuation, or otherwise, in the policy to be separately insured, and there is no general average nor stranding, the ordinary memorandum exempts the underwriters from liability for a total loss or destruction of part only, though one or more entire packages be entirely destroyed. Ralli v. Janson, 6 E. & B. 422; 23 L. J., Q. B. 300, Ex. Ch., in which case the earlier decisions were reviewed. See Spence v. Union Marine Insur. Co., L. R., 3 C. P. 427; cited ante, p. 425. Where however, goods essentially different in nature and kind are insured under a general description as "masters' effects," the warranty is divisible, and means that the insurers will be liable for a total loss only of any of the specific articles insured under that description. Duff v. Mackenzie, 3 C. B., N. S. 16; 26 L. J., C. P. 313; Wilkinson v. Hyde, 3 C. B., N. S. 30; 27 L. J., C. P. 116. And, where the policy was on a ship and machinery in it, which were separately valued, and there was the clause "average payable on the whole or upon each as if separately insured," with the usual memorandum, and the ship caught fire and was damaged, but not the machinery, it was held that the expense of putting out the fire was not a particular average of the hull, but ought to be apportioned between the hull and the machinery, being an expenditure for the benefit of both equally. Oppenheim v. Fry, 5 B. & S. 348; 33 L. J., Q. B. 267, Ex. Ch.

Where the warranty is "free from average under 3 per cent. unless general, &c.," distinct successive losses, each less, but in the aggregate more than 3 per cent., are not within the exception, provided they occur during the same voyage; Blackett v. R. Exch. Ass. Co., 2 C. & J. 244; Stewart v. Merchants' Marine Insur. Co., 16 Q. B. D. 619, C. A.; but not otherwise. S. C. And where a particular average loss P. is under 3 per cent., and a general average loss G. has also arisen, then, although P. and G. together exceed 3 per cent., P. is not recoverable. Price v. Al Ships Small Damage Insur. Ass., 22 Q. B. D. 580, C. A. As to apportionment of expenses in calculating the average, see Marine Insur. Co. v. China, &c., SS. Co., 11 Ap. Ca. 573, cited ante, p. 428.

A usage that underwriters are not liable, under the ordinary form of policy, to general average on account of the jettison of timber stowed on the deck, is a valid custom, and not inconsistent with the terms of such policy. Miller v. Tetherington, 6 H. & N. 278; 30 L. J., Ex. 217; 7 H. & N. 954; 31 L. J., Ex. 363, Ex. Ch.

A policy on profits to be earned by a British ship made "free from average, but, without benefit of salvage," is void under 19 Geo. 2, c. 37, s. 1; Smith v. Reynolds, 1 H. & N. 221; 25 L. J., Ex. 337; De Mattos v. North, L. R., 3 Ex. 185; Mortimer v. Broadwood, 20 L. T., N. S. 398; E. T. 1869, C. P. So, a similar policy on commission, or profit, on ship and ships, &c., if it do not exclude British vessels. Allkins v. Jupe, 2 C. P. D. 375. So, a policy insuring cash advances on a ship, if it con

or

tain the term "full interest admitted." Berridge v. Man On Insur. Co., 18 Q. B. D. 346, C. A.

Damages.] By 3 & 4 Will. 4, c. 42, s. 29, the jury may, if they think fit, give damages in the nature of interest, over and above, the money recoverable in all actions on policies of assurance; but, this does not apply in respect of a delay in payment, occasioned only by there being no person entitled to give a discharge for the amount. Webster v. British Empire Assur. Co., 15 Ch. D. 169, C. A.

Defence.

Under Rules, 1883, O. xix. rr. 17, 20, ante, pp. 301, 302, a denial of the contract operates as a denial of the making thereof in point of fact only, and not its sufficiency in point of law. Hence, an insufficient subscription of the policy by the defendant, within 30 & 31 Vict. c. 23, s. 7, ante, p. 262, which avoids the policy, must now be specially pleaded.

As to defences arising from want of stamp or alterations avoiding the policy under the Stamp Acts, vide ante, pp. 262, 264.

The two companies incorporated by 6 Geo. 1, c. 18, viz., the London Assurance and the Royal Exchange Assurance, are empowered by 11 Geo. 1, c. 30, s. 43, to plead in a general form, and this privilege is not taken away by 5 & 6 Vict. c. 97, s. 3. Carr v. R. Exch. Assur. Co., 1 B. & S. 956; 31 L. J., Q. B. 93. Nor, it would seem, is it affected by the J. Acts. See Garnett v. Bradley, 3 Ap. Ca. 970, per Ld. Blackburn, cited ante, p. 291. See also Rules, 1883, O. xix. r. 12, ante, p. 301, which, however, reserves the right to plead "not guilty by statute," only.

In an action brought under 31 & 32 Vict. c. 86, s. 1, ante, p. 405, by the assignee of a policy, the defendant cannot set off or counter-claim, a debt or claim accruing to him from the assured, prior to his assignment of the policy. Pellas v. Neptune Marine Insur. Co., 5 C. P. D. 34, C. A.

Concealment; misrepresentation; fraud.] If the assured conceal any material fact which relates to the risk insured, the policy is void; Carter v. Boehm, 3 Burr. 1905. Every fact which would affect the judgment of a rational underwriter, governing himself by the principles and calculations on which underwriters do in practice act, although it does not increase or diminish the risk incurred, must be disclosed; Ionides v. Pender, L. R., 9 Q. B. 531; Rivaz v. Gerussi, 6 Q. B. D. 222, C. A., cited post, p. 433; Tate v. Hyslop, 15 Q. B. D. 368, C. A.; even, though the fact was once known to the underwriter, if it were not present to his mind at the time of effecting the insurance. Bates v. Hewitt, L. R., 2 Q. B. 595. And the assured is bound to communicate all the information he has received, though he does not know it to be true, and though it afterwards turns out to be false. Lynch v. Hamilton, 3 Taunt. 37. The question is whether the fact concealed would have influenced the mind of a reasonable underwriter if communicated. Stribley v. Imperial Marine Insur. Co., 1 Q. B. D. 507. If a principal effect an insurance in ignorance of a material fact which ought to have been communicated to him by an agent having charge of the subject-matter of insurance; Fitzherbert v. Mather, 1 T. R. 12; Proudfoot v. Montefiore, L. R., 2 Q. B. 511; or by an agent employed to effect an insurance, although he commence only, but do not conclude the negotiation; Blackburn v. Haslam, 21 Q. B. D. 144, the insurance is void. But when the negotiation by the agent was in such a case broken off, and fresh negotiations opened by the principal, leading

to the insurance, the policy was held valid. Blackburn v. Vigors, 12 Ap. Ca. 531, D. P. Where the agent without fraud neglects to communicate to the owner damage done to the vessel, this damage is excepted out of the policy. Gladstone v. King, 1 M. & S. 35. To prove the defence of concealment of a material fact, it lies on the defendant to prove, not only the fact, and the plaintiff's knowledge, but also the non-communication of it to the defendant; but slight evidence is enough, and the mere subscribing of the policy may be evidence of it, where the suppressed fact is one which would have prevented a reasonable man from subscribing; as that the ship had been so long abroad, on her voyage, as to be a missing ship. Elkin v. Janson, 13 M. & W. 663. It is sufficient to communicate facts, without the opinion or conclusion founded upon those facts. Bell v. Bell, 2 Camp. 479. Mere rumours or news in the public papers need not be mentioned. 3 Kent, Com. 285; but see Durrell v. Bederley, Holt, N. P. 283. Facts which the underwriter is presumed to know need not be communicated, as that a ship, classed A 1 at Lloyd's, will be struck off the list unless re-surveyed, in the fourth year from the registration. Gandy v. Adelaide Marine Assur. Co., L. R., 6 Q. B. 746. But the peculiar danger of a new port at which the ship is insured by the policy, and the existence of which was unknown to the underwriter, must be disclosed. Harrower v. Hutchinson, L. R., 5 Q. B. 584, Ex. Ch., reversing S. C., L. R., 4 Q. B. 523. As to the admissibility of the evidence of an underwriter or other witness, as to his opinion of the materiality of a fact concealed, or of whether the fact, if known, would have altered the terms of insurance, vide ante, pp. 174, 175.

As there must be no concealment of a material fact, so there must be no misrepresentation of any such fact. Such misrepresentation will avoid the policy, though the actual loss is unconnected with the fact misrepresented or concealed, and though there is no fraud intended by the insurer. Seaman v. Fonerau, Str. 1183. In Flinn v. Tobin, M. & M. 367, Ld. Tenterden, C. J., told the jury that a verbal mis-statement of the quantity of the cargo which the ship was about to carry would not vitiate a policy on the ship unless it was fraudulent. The question, as stated by Kent (3 Com, 283), is "Whether there was, under all the circumstances, a fair representation or a concealment; if the misrepresentation or concealment was designed, whether it was fraudulent; and, if not designed, whether it varied materially the object of the policy, and changed the risk understood to be run. If the representation was by fraudulent design, it avoids the policy, without staying to inquire into its materiality; and if it was caused by a mistake or oversight, it does not affect the policy, unless material, and not true in substance." So a mis-statement as to the name or age of the ship avoids the policy. Ionides v. Pacific Insur. Co., L. R., 6 Q. B. 674; L. R., 7 Q. B. 517, Ex. Ch. But in the case of an open policy on goods, in ships to be afterwards declared, a mistake as to the description of the ship made in the declaration is not material. S. C. In Anderson v. Thornton, 8 Exch. 425, it was held that a plea alleging a material mis-statement as to the time of sailing, fraudulently made, may be supported by proof of material mis-statement, but without fraud. If the representation is not a positive assertion, but only an expression of the speaker's opinion, expectation, or belief, this will not avoid the policy, if the assertion is made bonâ fide, and in ignorance of the untruth. Barber v. Fletcher, 1 Doug. 305; Bowden v. Vaughan, 10 East, 415; Anderson v. Pacific, &c. Insur. Co., 21 L. T., N. S. 408, P. C.; see Ionides v. Pacific Insur. Co., supra. It is sufficient, however, if a representation be substantially correct, and it need not, like a warranty, be strictly and

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