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Theophilus Parsons.

Laws of business for all the states of the Union : with forms and directions for all transactions. And abstracts of the laws of all the states and territories on the various topics online

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now lying in the port of am held and firmly bound unto (name

of the lender, who is the obligee of the Bond)

in the sum of lawful money of the United States of America,

to be paid to the said or to

certain attorney executors, administrators, or assigns ; for which payment, well
and truly to be made, I bind myself, my heirs, executors, and administrators, and
also the said vessel, her tackle, apparel, and furniture, firmly by these presents.
Sealed with my seal, at this day of

in the year of our Lord one thousand eight hundred and

Whereas, The above bounden (name of the obligor) has been obliged to take
up and borrow, and hath received of the said

for the use of the said vessel, and for the purpose of fitting the same for sea, the
sum of lawful money of the United States of America, which

sum is to be and remain as a lien and bottomry on the said vessel, her tackle,
apparel, and furniture,



COMMERCIAL FORMS. 357

it the rate or premium of (state the rale of the maritime interest") for the voyage. In
consideration whereof, all risks of the seas, rivers, enemies, fires, pirates, &c., are to
be on account of the said (name of the lender). And for the better security of
the said sum and premium, the said master doth, by these presents, hypothecate
and assign over to the said heirs, executors, administrators, and

assigns, the said vessel, her tackle, apparel, and furniture,

And it is hereby declared, that the said vessel, is thus hypothecated

and assigned over for the security of the money so borrowed, and taken up a
aforesaid, and shall be delivered for no other use or purpose whatever, until this
bond is first paid, together with the premium hereby agreed to be paid thereon.

Now the Condition of this Obligation is such, That if the above
bounden (the borrower) shall well and truly pay, or cause to be paid, unto the

said (the lender)

the just and full sum of lawful money as aforesaid, being the

sum borrowed, and also the premium aforesaid, at or before the expiration of
days after the arrival of the said vessel at

then this obligation, and the said hypothecation, to be void and of no effect, other-
wise to remain in full force and virtue. Having signed and executed two bonds
of the same tenor and date, one of which being accomplished, the other to be
void and of no effect.

(Signature.) (Seal.)
Signed, Sealed and Delivered in the Presence of

I do not give the form of a Respondentia Bond. This contract is
now unusual, and is made only when some special emergency calls
for it, and must then be framed to suit that emergency, and express
the special terms of the bargain. The foregoing form, in connec-
tion with what is said of Respondentia Bonds in the text, and the
points in which they resemble Bottomry Bonds and those in which
they differ from them, will enable any one to frame a Respondentia
Bond suited to most cases.



(97.)
Oath or Affirmation of Consignee or Agent.

District and Port of Philadelphia. I (name of the consignee)

do solemnly and truly swear (or affirm) that the invoice and bill of lading now
presented by me to the collector of , are the true and only invoice

and bill of lading by me received, of all the goods, wares, and merchandise, im-
ported in the (name of the vessel) whereof



358 THE LAW OF SHIPPING.

is master, from for account of any person whomsoever,

for whom I am authorized to enter the same : that the said invoice and bill of
lading are in the state in which they were actually received by me, and that I do
not know nor believe in the existence of any other invoice, or bill of lading of the
said goods, wares, and merchandise ; that the entry now delivered to the collector
contains a just and true account of the said goods, wares, and merchandise accord-
ing to the said invoice and bill of lading : that nothing has been, on my part, nor
to my knowledge, on the part of any other person, concealed or suppressed, whereby
the United States may be defrauded of any part of the duty lawfully due on the
said goods, wares, and merchandise, and that if, at any time hereafter, I discover
any error in the said invoice, or in the account now rendered of the said goods,
wares, and merchandise, or receive any other invoice of the same, I will immedi-
ately make the same known to the collector of the district

And I do further solemnly and truly swear (or affirm) that, to the best of my knowl-
edge and belief, (name and residence oftiie owner of the goods) is owner
of the goods, wares, and merchandise, mentioned hi the annexed entry ; that the
invoice now produced by me exhibits the actual cost, or fair market-value,

of the said goods, wares,

and merchandise, all the charges thereon, and no other or different discount, bounty,
or drawback, but such as has been actually allowed on the same.

this day of 18

(Signature.")

Before me, Collector.



(98.)
Custom House Power of Attorney, tfo. 201.

Know all Men by these Presents, That I (name of principal)

do make, constitute, and appoint (name of attorney) my true and lawful attor-
ney for me and in my name and stead to enter in due form of law, at the Custom
House in the city of all goods, wares, and merchandise, which

have been imported or may hereafter be imported by or

which have arrived, consigned, or may hereafter arrive, consigned to

or in which or may be interested or concerned.

And for me and in my name and stead to sign, seal, execute, and deliver all
and every bond and bonds which may be required to secure the duties thereon, or
for the transportation or exportation of the same ; or any other bond or bonds
required by the revenue laws or the regulations of the Treasury Department of the
United States, or the collector of the customs of the district of
relative to any such merchandise ; or which may be necessary to obtain the
debenture and debentures, upon such of the said goods, wares, and merchandise aa



COMMEECIAL FOEMS. 359

may be exported for me or on my account. To have, take, and receive all deben-
ture certificates to be issued thereupon for me and in my name

to indorse, assign, and transfer the same ; or have, take, and

receive the moneys due and to grow due thereon : And generally, as my attorney
to do, transact, and perform all custom-house business, of what kind soever, in
which I am or may be interested or concerned, as fully and effectually, to all
intents and purposes, as I if present there in person, could do ; also to set my seal
to any instrument which may be necessary in the premises, and the same to
acknowledge for me to be my deed ; and generally to do and perform all things
relating to the premises, which I could lawfully do, if personally present, and as
fully and effectually to every intent and purpose, although the same should seem
to require more precise or special authority than is herein expressed. And
especially authorizng and empowering my said attorney, for me and in my name
and stead to sign, seal, execute, and deliver all bonds of indemnity and other
specialities, and also all other documents which may be necessary for effecting the
premises ; hereby ratifying all and whatsoever my said attorney may lawfully do by
virtue hereof.

And I hereby further authorize my said attorney at any time, and from time to
time at his discretion, by proper letters of attorney, to substitute any other person
or persons for himself in my place, and the same at his pleasure to revoke ; lioreby
giving to the substitute or substitutes, as full power and authority in the premises,
as is hereby given to my said attorney. And also hereby ratifying*and confirming
all and every act, matter, and thing, that my said attorney or his substitute or sub-
stitutes may do in the premises, by virtue of these presents.

And it is hereby declared and understood, that this power shall be and remain
in full force and virtue until revoked by written notice given to the collector.

In Witness Whereof, I have have hereunto set my hand and seal this
day of 18

(Signature.) (Seal.)
Signed, Sealed and Delivered in Presence of

STATE OF

Be it Known, That on the day of 18

personally appeared and

acknowledged before me the foregoing power of attorney to be free act

and deed.

In Testimony Whereof, I have hereunto set my hand and seal of office
the day of 18



360 THE LAW OF SHIPPING.

(99.)
Maritime Protest.

TJNTTEID STATES OF

Notary.

STATE OF COUNTY OF

i

By Ibis Public Instrument of Protest, Be it known, that on the

day of in the year of our Lord one thousand eight

hundred and before me, a Notary Public hi

and for the State of County of and dwelling in

the city of , State of , duly commissioned and

sworn, personally came and appeared (names of ail the parties who make the

protest, wilh a description of each of them, as to occupation and residence')
which said appearers, after having been duly sworn by me, the said notary, upon
the Iloly Evangelists of Almighty God, voluntarily, freely and solemnly declare
and depose as follows, to wit : that the (name of the vessel, describing her gen-

erally) on the day of in the year 18

sailed from the port of bound for the port of .

with a cargo of that when they started, as aforesaid, the

said was stout, stanch and strong ; had her cargo well and

sufficiently stowed and secured ; was well manned, tackled, victualled, apparelled
and appointed ; and was in every respect fit for the voyage she was about to under-
take : And thereafter, on the day of hi the year 18
(here must be set forth with some minuteness the place of any accident or loss, and the
circumstances of the occurrence)

Now, therefore, because of the premises, and as all the loss, damage and injury
which already have or may hereafter appear to have happened or accrued to the
said or her said cargo, has been occasioned solely by the cir-

cumstances hereinbefore stated, and cannot nor ought not to be attributed to any
insufficiency of the said or default of him, the said

his officers or crew ; he now requires me, the said notary, to make his protest and
this public act thereof, that the same may serve and be and remain in full force and
virtue, as of right shall appertain. And thereupon the said

doth protest, and I, the said notary, at his special instance and request, do, by these
presents, publicly and solemnly protest against winds, weather (and whatever else
caused the loss, asjire, or pirates, ffc.), and against all and every accident, matter
and thing, had and met with as aforesaid, whereby or by means whereof the
said or her cargo, already has, or hereafter

shall appear to have Buffered or sustained damage or injury, for all losses, costs
charges, expenses, damages, and injury, which the said the

owner or owners of the said or the owners, freighters or shippers

of her said cargo, or any other person or persons concerned in either, already have



COMMERCIAL FOEMS. 361

or may hereafter pay, sustain, incur, or be put unto by, through, or on account of
the premises, or for which the insurer or insurers of the said or

her cargo, is or are respectively liable to pay, or make contribution or average,
according to custom, or their respective contracts or obligations ; so that no part
of such losses and expenses already incurred, or hereafter to be incurred, do fall
upon him, the said his officers and crew.

We, (repeat here the names of the appearers) do solemnly swear that the fore-
going statement is correct, and contains a true account of all the facts and circum-
stances of the case, to the best of our knowledge.

(Signatures of all the appearers.')

Thus Done and Protested, at my office, in the city of , this

day of in the year of our Lord one thousand

eight hundred and sixty

Notary Public, County of State of

To all to whom these Presents shall come : I, Notary

Public, duly commissioned and qualified, residing at , in the

County of and State of , do hereby certify

that the foregoing, purporting to be a copy of the protest of the master and a part
of the crew of the bearing date the day

of last, is a true and* correct copy of said protest, which was

made before me, examined and compared with the original draft of the same, drawn
up and recorded in my office, in Book page and following :

In Testimony Whereof, I have hereunto set my hand, and affixed my
notarial seal, this day of A.D. 18

(Signature.) (Seal.)

' (100.)
A Steamboat Warrant, as used in tlie Western States.

Know all Men by these Presents, That we (name of debtor)

as principal, and (names of owners of the steamboat) owners of the steamboat

as security, are held and firmly bound

unto (name of creditor) in the sum of dollars, for the

payment of which we bind ourselves, our heirs, executors, and administrators,
firmly by these presents. Sealed with our seals, and dated this
day of eighteen hundred and sixty

The Condition of the above Obligation is such, That, whereas, the
said (name of creditor) as plaintiff has sued out of the office of
justice of the peace, a warrant against the steamboat (name of the steamboat)

returnable forthwith ; being on a demand for the sum of dollars,

and cents.



862 MARINE INSURANCE.

Now, if the said (name of the debtor) shall satisfy the amount wlu.h shall he
adjudged to be owing nnd due to the said plaintiff in the determination of suid
suit, together with all costs accruing, then this obligation to be void, otherwise to
remain in full force.

(Signatures.) (Seals.)

Approved, Sheriff (or Constable)



CHAPTER XXYI.

I3VSTJR-A.1VCE.



SECTION L
HOW THE CONTRACT OF INSURANCE IS MADE.

AT the present day insurance is seldom made by individuals.
Formerly, this was the universal custom in our commercial cities.
Afterwards, companies were incorporated for the purpose of making
insurance on ships and their cargoes ; and the manifold advantageb
of this method have caused it to supersede the other. But an in-
surance company is not bound to insure for all who offer, and it has
been held that an action will not lie against insurers for combining
not to insure for a certain person, however malicious their motive
may be.

The contract of insurance binds the insurer to indemnify the in-
sured against loss or injury to certain property or interests which it
specifies, from certain perils which it also specifies. The considera-
tion for this obligation on the part of the insurer is the premium
paid to the insurer, or promised to be paid to him, by the insured.

The instrument in which this contract is expressed is called a
Policy of Insurance. But no instrument is essential to the validity
"of the contract ; for if the proposals of the insured are written in



HOW THE CONTRACT OF INSURANCE IS MADE. 363

the usual way in the proposal book of the insured, and signed by
their officer with the word " done " or " accepted," or in any usual
way to indicate that the bargain is made, it is valid, although no
policy be delivered ; and it would be construed as an insurance upon
the terms expressed in the policy commonly used by that company.

If proposals are made, on either side, by letter, and accepted by
the other party, also by letter, this is a valid contract of insurance
as soon as the party accepting has mailed his letter to that effect, if
he have not previously received notice of a withdrawal of the pro-
posals.

The form of the policy is generally that which has been used for
many years both in England and in this country, with such changes
and modifications only as will make it express more accurately the
bargain between the parties. And for this purpose it may be and is
varied at pleasure.

It is subscribed only by the insurers ; but binds both parties.
The insured are bound for the premium, although no note is given.
The date may be controlled by evidence showing when it was made
and delivered ; but if delivered after its date, it takes effect at and
from its date, if that were the intention of the parties.

It may be effected on application of an agent of the insured, if ho
have full authority for this purpose ; which need not be in writing.
But a mere general authority, even if it related to commercial mat-
ters, or to a ship itself, as that of a " ship's husband," is not suf-
ficient.

A party may be insured who is not named, if " for whom it may
concern," or words of equivalent import, are used. But a party
who seeks to come in under such a clause must show that he was
interested in the property insured at the time the insurance was
made, and that he was in the contemplation of the party asking in-
surance. The phrase " on account of owners at the time of loss,"
or an equivalent phrase, will bring in those who were intended, if
they owned the property when the loss occurred, although there
were assignments and transfers between the time of insurance and
the loss.

Each person whose several interest is actually insured by any such
general phrase may demand or sue in his own name.

26



364 MARINE INSURANCE.

If tho nominal insured is described as " agent " generally, this is
equivalent to " for all whom it may concern." And an insurance

" for " will be read as for all whom it may concern, if that

were intended. So, if the designation of the insured be common to
many persons, the intention of the parties must decide for whom it
is made. Whatever is written on any part of the sheet containing
tho policy, or even on a separate paper, if referred to or signed by
the parties as a part of the policy, is thereby made a part of it.

But things said by either party while making their bargain, or writ-
ten on other paper, and not so referred to or signed, form no part of
it. The policy may expressly provide that its terms shall be made
definite, especially as to the property insured, by subsequent indorse-
ments or additions. Thus, it is very common to insure property to a
certain amount, " from A to B, on board ship or ships, as shall here-
after be indorsed on this policy." And when this or any equivalent
phrase is used, the insured requests the insurers to indorse on tho
policy the name of the vessel, and the amount shipped, as soon as
he has notice of it.

Alterations may be made at any time by consent. But a material
alteration by either party, without the consent of the other, rendera
the contract void ; although it was made honestly, in the hope or
belief of its being assented to. A court of equity will correct a
material mistake of fact.

A policy may be assigned, and the assignee may sue in the name
of the assignor. If the loss is made by the policy payable " to
order " or " to bearer," it will then be negotiable by indorsement or
delivery, but it is not certain that the transferee can even then sue in
his own name. In New York and some other States, not only these
assignees, but other assignees of debts or contracts, may sue in their
own names.

If the insured transfers the property, unaccompanied by a trans-
fer of the policy with consent of the insurer, this discharges the
policy, unless it was expressly made for the benefit of whoever
should be owner at the time of tho loss, as before stated. There is
usually a clause to the effect that the policy is void if assigned with-
out the consent of the insurers. But this does not apply to an as-
signment by force of law, as in a case of insolvency, or in a case of



THE INTEREST OF THE INSURED. 365

death. And after a loss has occurred, the claim against the in-
surers is always assignable like any other debt. And a seller who
remains in possession of the property as trustee for the purchaser,
or a mortgagor retaining possession, may retain the policy, and pre-
his rights.



SECTION H.
THE INTEREST OF THE INSURED.

THE contract of Insurance is a contract of indemnity for loss.
The insured must therefore be interested in the property at the
time of the loss. The value to be paid for may be agreed upon
beforehand, and expressed in the policy, which is then called a
valued policy ; or left to be ascertained by proper evidence, and the
policy is then called an open policy.

This valuation, if in good faith, is binding on both parties, even
if it be very high indeed. But a wager policy, that is, one without
interest, is void ; and although there be some interest, the valuation
may still be so excessive as to be open to the objection that the in-
terest is a mere cover, and that the contract is void because only one
cf wager. The valuation is void if fraudulent in any respect ; as if
it cover an illegal interest or peril. And in this case the fraud
vitiates and avoids the whole contract, and the insured recovers
nothing. And if the valuation is gross and excessive, fraud may be
presumed.

The insured may apply his valuation to the whole property, or to
that part of it which he wishes to insure ; thus he may cause him-
self to bo insured for one-half of a cargo, the whole of which is
valued at $20,000, or for one-half, which half is valued at 820,000 ;
and if the policy says, " Insured $15,000 on half the ship Scipio
(or on her cargo), valued at $20,000," whether -it is meant that the
whole ship (or cargo) is valued at $20,000, or the half only that is
insured, will be determined by a reasonable construction of the lan-
guage used. If he owns the whole, the valuation, in general, will
be held to apply to the whole ; and only to a part, if he owns only a
part.



MARINE INSURANCE.

He may value one thing insured, and not another ; or may value
the same thing in one policy, and not in another, and then the valua-
tion does not affect the policy which does not contain it. If only a
part of the goods included in the valuation are on board and at risk,
it applies to them in due proportion to their value.

A valuation of an outward cargo may be taken as a valuation of
a return cargo, substituted for the other by purchase, and covered
by the same policy. And a valuation will cover the insured's whole
interest in the thing valued, including the premium, unless a differ-
ent purpose is expressed or indicated.

A valuation of freight applies to the freight of the whole cargo ;
and, if a part only be at risk, it applies in proportion. And it ap-
plies either to the whole voyage, or to freight earned by voyages
which form parts of the whole, as may be intended and expressed.

If profits are insured as such, they are generally valued, but may
be insured by an open policy. If they are valued, the loss of the
goods on which the profits were to have been made implies in this
country a loss of the valued profits, without proof that there would
have been any profit whatever ; it seems to be necessary in England
to show that there would have been some profit, and then the valua-
tion attaches.

It is very common to insure profits, in fact, without saying any
thing about them, by a valuation of the goods sufficiently high to
include all the profits that can be made upon them.

In an open policy, where the value insured is to be determined
by evidence, the value of the property whether ship or goods
which is insured, is its value when the insurance took effect, includ-
ing the premium of insurance ; as the law of insurance intends
indemnifying the assured as accurately as may be for all his loss.
If a ship be insured, its value throughout the insurance is the same
as at the beginning, without allowance for the effect of time upon
it. And all its appurtenances, in a mercantile sense of this phrase,
enter into this value.

While the value of the property does not vary with time, the inter-
est of the insured at the time of the loss (which may be the whole,
or half, or any other part) is that on which he founds his claim.
Thus, if an owner of a ship is insured $20,000 on ship A. "5., valued



THE INTEREST WHICH MAY BE INSURED. 367

at $30,000, and afterwards sells half of the ship, and it is subse-
quently lost, he recovers only $10,000. But if he owned half origi-
nally, and insured that, and before the loss acquired the other half,
he recovers only for the half insured.

Generally, the value of goods is their invoice price, with all those
charges, commissions, wages, <fcc., which enter into the cost to the
owner, when the risk commences. The drawback is not deducted ;
and the expenses incurred after the risk begins,, as for freight, <fcc.,
are not included. And the rate of exchange at the beginning of
the risk is taken.



SECTION m.

THE INTEREST WHICH MAY BE ZNSUKED.

A MERE possibility or expectation cannot be insured ; but any
actual interest may be. If one has contracted to buy goods, he
may insure them, and will recover if the property be in him at the
time of the loss ; for if they are then destroyed, it will be his loss.



Online LibraryTheophilus ParsonsLaws of business for all the states of the Union : with forms and directions for all transactions. And abstracts of the laws of all the states and territories on the various topics → online text (page 37 of 70)