drawings which formed part of the property which the plaintiff brought to the said inn. 3. In the alternative, the defendant received the said maps, plans, and drawings from the plaintiff as a bailee thereof, and they have been burnt and injured through the carelessness of the defendant's servants. Particulars :[Set them out.] The plaintiff claims £100 damages. Defence. 1. The defendant denies that the plaintiff ever brought the said maps, plans, and drawings into the inn, and that he ever received them either as an innkeeper or a bailee. 2. He further denies that his servants burnt them. 3. If the said articles were brought to the defendant's inn, they were property within the meaning of the 26 & 27 Vict. c. 41, s. 1, the benefit of which Act the defendant is entitled to. 4. The defendant brings into Court the sum of £30, and says that the same is sufficient to satisfy the plaintiff's claim herein. Reply. 1. The plaintiff joins issue upon the defence. 2. As to the 3rd paragraph, the plaintiff says that the defendant, during the time the plaintiff was a guest at his inn, failed to exhibit section 1 of the said Act in a conspicuous part of the hall or entrance to the said inn. 3. The said property was lost and injured through the wilful act, default, or neglect of the defendant's servants. Rejoinder. The defendant joins issue upon the reply. Insanity (a). Defence of Insanity to an Action on a Contract. The defendant, at the time when he made the alleged agreement [or executed the said deed, or accepted the said bill, or as the case may be], was of unsound mind, as the plaintiff then well knew. Contracts with insane persons. The in Insurance-I. Marine Policies (b). 1. Claim for a Total Loss on a Voyage Policy. 1. The plaintiff was interested at the time of insurance and time of the loss to the amount of £500, under a marine policy (a) If a contract is made with a person of unsound mind, with knowledge of the fact by the other party, such contract cannot be enforced against him. If, however, such party was ignorant of the insanity, and the transaction was fair and bona fide on his part, the contract will be valid. See Molton v. Camroux, 2 Exch. 487; 4 Exch. 17; Baxter v. Earl of Portsmouth, 5 B. & C. 170; Read v. Legard, 6 Exch. 637; L. J. 20 Exch. 309; Beaven v. Mc Donnell, L. J. 23 Ex. 326; 9 Exch. 309. () Marine insurance is a contract by which the insurers, called underwriters, undertake, in consideration of a certain sum of money called the premium, to indemnify the assured against any loss which he may actually sustain, not exceeding a specified sum, upon ship, goods, or freight, as the case may be, either during a certain voyage or for a certain time. In the former case the policy is called a voyage policy; in the latter, a time policy. The party entering into a contract of marine insurance must have some sured must bona fide pecuniary interest in the subject-matter of insurance. He must have what is called an insurable interest, and this interest must exist not only at the time of entering into the policy but also at the time of the loss. have a pecuniary interest. Marine insurance, a contract of indemnity. Conscquences of this. Marine insurance is generally spoken of as a contract of indemnity merely, but in some cases the assured may receive more than a perfect indemnity. (See the judgment of Lord Blackburn in Aitchison v. Lohre, 4 App. Cas. 763.) Still marine insurance is generally merely a contract for indemnity; and it follows from this, that if the assured never had any interest in the subject-matter of insurance, or if his interest did not continue till the loss happened, he sustains no injury by the happening of the loss, and there is nothing for which to indemnify him. Another result which follows from the doctrine that the assured must have an insurable interest is this He can only recover from the underwriters to the extent of his insurable interest. It may be that in consequence of insuring with a number of underwriters the total amount written on the aggregate of the policies he holds is in excess of the value of the subject-matter of insurance, but this will be no advantage to the assured. He must not make a profit out of the common misfortune of the underwriters and himself; and he can only recover against any one or all of the underwriters the actual loss he has suffered. He is not, however, of insurance for that amount dated the 1st day of June, 1880, on the ship "Hero," subscribed by the defendant for £500. 2. Particulars :— (1) Valued at £20,000; (2) Voyage at and from Cardiff to Valparaiso ; bound to apportion the loss among the different underwriters, and can proceed against one of them and recover the total amount from him, provided he has underwritten the policy to that amount. In that case it will be for the underwriter who has had to pay all the loss to come upon the other underwriters who have insured the same risk for contribution. Insurable interest.]-In the statement of claim it was necessary expressly to aver the fact of the plaintiff's interest in the ship, goods, or freight insured, and the averment was that the plaintiff was interested at the time of the making of the contract (except, of course, where an assignee of a policy is suing, then an allegation of the assignor's interest at the time will do), and also at the happening of the loss. And it is submitted that it is still proper to aver the interest both at the time of contract of insurance and of the loss. What constitutes an insurable interest. Ship-owners have an insurable interest in their ship. Upon the principle already stated, where they assign away their interest in the ship before the loss, they cannot recover except as trustees for the assignee, and this only where there has been an agreement that the policy should be kept alive for the benefit of the latter (Powles v. Innes, 11 M. & W. 10); but an assignment by way of mortgage, though in terms absolute, will not prevent the assured from recovering. (Ward v. Beck, 13 C. B. N. S. 668; L. J. 32 C. P. 113.) A person who lends money for the repair of a ship has no insurable interest in it, and an hypothecation of a ship by a master gives no insurable interest to the creditor. (Stainbank v. Shepard, 13 C. B. 418; L. J. 22 Ex. 341.) A mere equitable interest in goods is an insurable one (Hill v. Secretan, 1 B. & P. 315); and a lien on goods is insurable. (Briggs v. Merchant Traders' Insurance Ass., 13 Q. B. 167.) The interest of a shipowner on the profit expected from Insurance carrying his own goods is properly described and insured as freight. The of freight. purchaser of a cargo of rice, which is to be loaded on board of a ship expected to arrive at a certain port, where it is to load for a voyage, he agreeing to pay a sum certain, has no insurable interest in the purchase, so that should the rice put on board be lost before the loading is completed, he cannot recover on a policy of insurance effected on goods in the vessel. (Anderson v. Morice, 1 App. Cas. 713; Flint v. Flemyng, 1 B. & Ad. 45; Devaux v. I'Anson, 5 N. C. 519.) The assignee of a policy stands upon the interest which his assignor had at the inception of the risk, and his own interest at the time of the loss. Beginning and end of the risk.]-This differs whether the policy is a time or a voyage policy, though a policy may be both a voyage policy and a time policy. (Gambles v. Ocean Marine Co., 1 Ex. Div. 141.) If the former, the risk begins at the first date and ends with the last date, and the underwriters are only liable if the loss happens on or between these dates. In the case of a voyage policy, the risk begins when the insurance is on a voyage "at and from," as soon as the ship is geographically within the port (Haughton v. Empire Marine Insur. Co., L. R. 1 Ex. 206); or, at the beginning of the voyage when the insurance is "from" the port. (Small v. Gibson, 16 Q. B. 156; L. J. 20 Q. B. 152, Ex. Ch.) The risk in the case of a voyage policy on the ship terminates in general at the end of twenty-four hours after mooring in safety in When the risk begins and when it ends. When the risk begins. Usual losses covered. Effect of "lost or not lost." What are the sea. (3) Premium to defendant: £3 per cent. ; : (4) Perils insured against causing loss of the seas; The plaintiff claims £500. port, but where during the twenty-four hours the ship is compelled to go back for performance of quarantine, the risk continues. (Waples v. Eames, 2 Str. 1243.) In the case of goods, the risk depends on the agreement of the parties, but it usually begins with the loading on board, and ends with the safe discharge, including their passage to the shore by usual means. (Twiney v. Etherington, 1 Burr. 348.) The risk on insurance of freight begins when the goods or part are on board, or the ship is at the port of loading in a condition to take them on board. (Foley v. United Fire, &c., Insur. Co., L. R. 5 C. P. 155; Jones v. Neptune Marine Insur. Co.. L. R. 7 Q. B. 702.) The loss.]-There must be an averment that there was a loss of part or all the subject-matter of insurance by the perils insured against. These perils are enumerated in the particular policy; but the usual perils insured against in marine policies are all perils of the seas, loss by fire, by capture, loss by restraint of princes, loss by barratry, and then follow general words, "all other perils, losses, and misfortunes ;" but on the principle that general words of the kind are to be taken as ejusdem generis with those that have gone before, these words only refer to perils, losses, and misfortunes of a like nature to those already enumerated. If the insurance is with the words "lost or not lost," it will attach, although the subject-matter had been in fact lost at sea at the time of insurance, provided the party insured was then ignorant of the loss. (3 Kent Com. 258, 259; Mead v. Davieson, 3 Ad. & E. 303.) In determining whether a particular loss is within the perils insured against, the proximate and not the remote cause of loss is to be regarded. But where the insurance is against perils of the sea, and mischief is occasioned by the sea, the natural and unavoidable consequence of which is to cause a farther mischief, the consequential injury also is a peril of the sea, as where the sea-water damages part of a cargo, which thereby becomes putrid so as to injure another part of the cargo in contact with it. (Montoya v. London Assur. Co., 6 Exch. 451; L. J. 20 Ex. 254.) A loss by perils of the sea, though remotely caused by the perils of negligence of the crew, is within the policy. (Walker v. Maitland, 5 B. & A. 171; Bishop v. Pentland, 7 B. & C. 219.) So a loss occasioned by the mistake of the master, provided he was a person of competent skill when the policy was effected. (Phillips v. Headlam, 2 B. & Ad. 380.) So though the ship was damaged by negligent loading, and became leaky, and was run ashore to prevent sinking. (Redman v. Wilson, 14 M. & W. 476.) A ship never heard of after sailing is presumed to have foundered at sea. (Green v. Brown, 2 Str. 1199.) It is sufficient to prove that the ship has not been heard of in the country from which she sailed, without calling witnesses from the port of destination to prove that she never arrived there. (Twemlow v. Oswin, 2 Camp. 85.) The time within which a missing ship will be presumed lost must depend on the circumstances of the case; and in Houstman v. Thornton, Holt, N. P. 242, a ship which had sailed on a seven weeks' voyage, and had not been heard of for eight or nine months, was presumed to be lost. Though a ship is burned by the negligence of the master and mariners, this is a loss by fire within the policy for which the underwriters are liable (Busk v. R. Exch. Assur. Co., 2 B. & A. 73) ; but on an insurance of goods, if the goods are burnt in consequence of When a ship never heard of is supposed to have foundered. 2. Another Claim for a Total Loss on a Voyage Policy. 1. On the 5th of May, 1880, the plaintiffs effected with the defendant a policy of marine insurance for £100 against the being put on board in bad condition, this, being occasioned by the insurer's own act, would not be a loss by fire within the policy. (Boyd v. Dubois, 3 Camp. 133.) As to what amounts to a loss by restraint of princes, see Aubert v. Gray, L. J. 32 Q. B. 50; Bruce v. Nicopulo, 11 Exch. 129; L. J. 24 Ex. 321; Rodocanachi v. Elliott, L. R. 8 C. P. 649, and in Ex. Ch. L. R. 9 C. P. 518; Geipel v. Smith, L. R. 7 Q. B. 404. 66 There is usually a memorandum on marine policies protecting the insurer from claims for loss on certain articles, or from liability to particular average" unless the ship be stranded;" and in a great number of cases there has been a keen contest as to what constitutes a stranding. The fact that the ship struck or took the ground is not enough; she must be stationary for some little time, as twenty minutes. (Baker v. Towry, 1 Stark. 436.) "A stranding," said an eminent judge, 'may be said to take place where a ship takes the ground not in the ordinary course of navigation, but by reason of some unforeseen accident. If therefore the ship takes the ground in the ordinary and usual course of navigation and management in a tidal river or harbour, upon the ebbing of the tide or natural deficiency of water, so that she may float again upon the flow of the tide or increase of water, such an event is not a stranding." (Per Lord Tenterden, in Wells v. Hopwood, 3 B. & Ad. 34.) If, however, there be a stranding, and the goods were on board at the time, the policy applies, though the loss or injury to the goods was not caused by the stranding, but by some other cause. (Ibid.) What constitutes a stranding. Losses divided into total and partial; and total into actual and construc A loss may be total or partial; and a total loss may be either actual or constructive. A total loss is where the subject-matter of insurance is either totally destroyed or is so damaged as to be worthless, and the adventure is thereby totally frustrated. (Roux v. Salvader, 3 N. C. 266.) A constructive total loss is where the thing insured, though still existing in fact, is lost for all useful purposes, so as to justify the insured in abandoning all his interest in it to the insurer, and claiming as for a total loss. (See Roux v. Salvader, supra; Naylor v. Taylor, 9 B. & C. 718; Holdsworth v. Wise, 7 B. & C. 794.) Notice of abandonment must be given to the underwriters, unless there is no part of the subjectmatter of insurance remaining which on abandonment can be of any value to the underwriters. (Rankin v. Potter, 6 H. L. Cases, 83; Farnworth v. Hyde, 18 C. B. Ñ. S. 835 ; L. J. 34 C. P. 207.) It need not Notice of be in writing, but it must be certain, it must be unconditional and abandonunqualified (McMasters v. Shoolbred, 1 Esp. 239); and it must be given ment. as soon as possible. (Hunt v. R. Erch. Assurance Co., 5 M. & S. 47 ; Kaltenbach v. Mackenzie, 3 C. P. D. 467.) Calculation of the loss.]-Where the policy is a valued one-the estimated value of the subject-matter of insurance stated on the face of itand the loss is total, there is no difficulty about calculating the loss, and the assured is only bound to prove some interest in the ship or goods, in order to take the case out of the statute 19 Geo. 2, c. 37, for ever since that statute, the usage has been to permit the valuation fixed on the policy to stand, unless the defendant can show that the plaintiff had a colourable interest only, or that he has greatly overvalued the goods. Acting on this principle, in North of England Insurance Association v. Armstrong, 5 Q. B. 244, where a policy was effected for £6000 on the ship H. valued at £6000, and she was run down and sunk by another ship, and the underwriters paid the owners £6000 as for a total loss, it tive. When policy valued and loss total, how loss calculated. |