Copyright
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

. (page 39 of 70)
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 39 of 70)
Font size
QR-code for this ebook


which may be done after the loss, provided this appears to have been
the intention of the parties. " Cargo," " goods on board," " mer-
chandise," mean much the same thing ; and do not attach to orna-
ments, clothing, or the like, owned by persons on board and not
intended for commercial purposes. " Property " is the word of
widest and almost unlimited meaning. " Ship " or " vessel "
includes all that belongs to it at the time, even sextants or chro-
nometers belonging to the ship-owner, and by him appropriated to
the navigation of the ship. So it includes all additions or repairs
made during the insurance.

The phrase " a return cargo " will generally apply to a homeward
cargo of the party insured in the same ship, however it be procured ;
but the phrases " proceeds " and " returns " are generally regarded
as limited to a return cargo bought by means of the outward cargo.
And neither of these, or any similar phrases, will apply to the same
cargo brought back again, unless it can be shown, by the usage, or
other admissible evidence, that this was the intention of the parties.

The nature of the interest of the insured need not be specified,
unless peculiar circumstances, closely connecting this interest with
the risk, make this necessary. But either a mortgagor or a mort-
gagee, a charterer, an assignee, a consignee, a trustee, or a carrier,
may insure as on his own property, and without describing the
exact nature of his interest.



SECTION XIIL

THE PERILS COVERED BY THE POLICY.

THE policy enumerates, as the causes of loss against which it
insures, Perils of the Sea, Fire, Piracy, Theft, Barratry, Capture,
Arrests, and Detentions; and " all other perils," by which is meant,
by construction of law, all other perils of a like kind with those
enumerated.

It is a universal rule, that the insurers are liable only for extraor-
dinary risks. The very meaning of " seaworthiness," which the
insured warrants, is that the ship is competent to encounter with
aa



380 MARINE INSURANCE.

safety all ordinary perils. If she be lost or injured, and the loss
evidently arose from an ordinary peril, as from common weather, or
the common force of the waves, the insurers are not liable, because
the ship should be able to withstand these assaults. And if the loss
be unexplained, and no extraordinary peril be shown or indicated,
this fact would raise a very strong presumption of unseaworthiness.
As, for example, if the vessel went down while sailing with favora-
ble winds on a cairn ocean.

It is a universal rule, that the insurers are never liable for a loss
which is caused by the quality of the thing lost. This rule applies
to the ship, her rigging and appurtenances, when worn out by age
or hard service. But its most frequent application is to perishable
goods. The memorandum already spoken of provides for this in
gome degree. But the insurers are liable for the loss of no article
of merchandise whatever, if that loss were caused by the inherent
qualities or tendencies of the article, unless these qualities or ten-
dencies were excited to action and made destructive by a peril
insured against. Thus, if hemp rots from spontaneous fermenta-
tion, which cannot occur if it be dry, the insurers are not liable if
the loss arose from the dampness which the hemp had when laden
on board ; but if the vessel were strained by tempest, and her
seams opened, and the hemp was in this way wet, and then rotted,
they are liable.

The insurers may take upon themselves whatever risks they choose
to assume. And express clauses in a policy, or the uniform and
established usage and construction of policies, may throw upon
them, as in fact it does, a very large liability to the owner or shipper
for the effects of the misconduct wilful or otherwise of the
master and crew. The clause relating to barratry, to be spoken of
presently, is of this kind.

If the cargo is damaged through the fault of the master or crew,
the shipper of the cargo has a remedy against the owner of the ship.
But this does not necessarily discharge the insurers. If, however,
he enforces his claim against them, he is bound to transfer to them
his claim against the ship-owner. For the insurers of the cargo, by
paying a loss thereon, put themselves, as it were, in the position of
the shippers, and acquire their rights.



PERILS OP THE SEA. COLLISION. 381

SECTION XIV.
PERILS OF THE SEA.

BY this phrase is meant all the perils incident to navigation ; and
especially those arising from the wind and weather, the state of the
ocean, and its rocks and shores. But it will be remembered that
the insurers take upon themselves only so many of these as are
" extraordinary." Hence, destruction by worms or by rats is not
such a peril as the insurers are liable for, because it is not extraor-
dinary. It seems now settled that fire is not included among " per-
ils of the sea," or " perils of the river." But it is usually men-
tioned in the policy, as one of the risks insured against.

If a vessel be not heard from, it will be supposed, after a reasona-
ble interval, that she has perished ; but the law has not determined
the length of this interval with any exactness. The presumption
of law will be, that she was lost by an extraordinary peril of the sea,
and, of course, the insurers will be answerable for her. But this
presumption may be rebutted by any sufficient evidence, as of un-
seaworthiness, or any other probable cause of loss.



SECTION XV.

COLLISION.

COLLISION is a peril of the sea which may deserve especial notice.
In the chapter on Shipping, it has been stated, that, where a collision
is caused by the fault of one of the ships, the ship in fault sustains
the whole loss ; that is, it must bear its own loss, and must indem-
nify the other ship for the injury that ship sustains. It has been
held that the insurers of the ship in fault are liable for the whcle of
this loss, because it is all caused by collision, which is a peril of the
sea. But the Supreme Court of the United States have recently
decided that the insurers are not held for more than the loss directly



382 MARINE INSURANCE.

sustained by the ship they insure, that is, not for the amount that
ship pays to the other ship for injury done to it.



SECTION XVL

FIRE.

THIS peril also must come under the common rule, that the
insurers will not he held unless it be caused by something extraordi-
nary, and not belonging to the inherent qualities of the thing which
takes fire.

The insurers would be held for any direct and immediate conse-
quences of the fire ; and for loss caused by the endeavor to extin-
guish it. It is, indeed, a general rule, that the insurers are liable
for the loss or injury which is the natural, direct, and proximate
effect of any peril insured against, although the loss itself may be
only the effect of a preceding loss ; as, if a part of the cargo was
burned up, and another part was injured by water used to arrest the
fire, the insurers would be liable for both parts.



SECTION XVIL

PIRACY, BOBBERY, OR THEFT.

THERE can be no piracy or robbery without violence ; but this is
not necessary to constitute the crime of theft. Piracy and robbery
are most usually committed by strangers to the ship ; they may,
however, be committed by the crew ; and the insurers are answer-
able for such a loss, unless it arose from the fault of the owner.
Our policies now usually have the phrase " assailing thieves." This
excludes theft without violence, and all theft by those lawfully on
board the vessel, as a part of the ship's company. If, after ship-
wreck, the property is stolen, the insurers are liable, and might be
so if there were no insurance against theft, if this was a direct
effect of the wrecking.



BABEATBY. - CAPTUKE, ABBE8T, AND DETENTION. 383

SECTION XVIIL
BARRATRY.

THIS word means any wrongful act of the master, officers, or
3rew, as any fraud, cheat, or trick done by them, or either of them,
against the owner. If he directed the act, or consented to it, or by
his negligence or default caused it, whether he were actual
owner, or apparent or temporary owner by hiring the vessel, it is
no barratry. But it is not necessary that it should be done with an
intention hostile to him. For an act otherwise barratrous would be
none the less so because the committer of it supposed it would be
for the advantage of the owner.

The master being appointed by the owner, and controlled by him,
many policies provide that they do not insure against barratry, if
the insured be the owner of the ship. The purpose of this is obvious ;
it is to prevent an insurance of the owner against the acts of one
for whom the owner ought to hold himself responsible. The effect
of the clause is to limit the insurance against barratry to goods
shipped by one who is not owner of the vessel.

As a general rule, the insurers are liable for the misconduct of
the crew, when all usual and reasonable precautions have been
taken by the owner, and his servant, the master, to prevent such
misconduct.

SECTION XIX.

CAPTURE, ARREST, AND DETENTION.

THE phrase which refers to these perils is usually in theso words :
" Against all captures at sea, or arrests, or detentions of all kings,
princes, and people." Almost every word of this sentence has been
the subject of litigation or of discussion. The provision has been
held to apply not only to captures, arrests, or detentions by public
enemies, by foreign belligerent powers, but to those by the very
government of which the insured is himself a subject, unless the
same be for a breach of the law by the insured. Then the insurers



884 MARINE INSURANCE.

are not liable, because they never are for the consequence of an
illegal act of the insured. By the " people " are understood the
sovereign power of a State, whatever be its form of government.
" Capture " and " seizure " are equivalent ; they differ from " de-
tention " in this respect : the two former words mean a taking with
intent to keep ; the latter, a taking with intent to restore the prop-
erty. " Arrest " is any taking possession of the property for any
hostile or judicial purpose.



SECTION XX.

THE GENERAL CLAUSE.

THIS clause has a very limited operation. We have already
remarked, that it is usually restricted to perils of a like kind with
those already enumerated ; and although this phrase has been
declared to be substantial and material, it might be difficult to hold
an insurer liable under this clause, when he would not have been
liable under some one of the enumerated perils.



SECTION XXI.

PROHIBITED TRADE.

THIS is not the same with contraband trade (which belongs to
war), although the words are sometimes used as if they were
synonymous. It is perfectly lawful for a ship to break through a
blockade if it can, or to carry arms or munitions of war to a
belligerent. This would be contraband trade. And it is perfectly
lawful for the State whose enemy is thus aided, to catch, seize, and
condemn the vessel that does this, if it can. The vessel takes upon
itself this risk ; and it is not covered by a common policy, unless
the purpose is disclosed and permitted. Prohibited trade belongs to
a time of peace. It is either trade prohibited "by the State to
which the ship belongs, and then it is wholly illegal, and the



DEVIATION. 385

insurers are not only not answerable under a general policy for
a loss occasioned by this breach of law, but an express bargain to
that effect would itself be illegal and void ; or it may be trade
prohibited only by a foreign State. And then it is not an illegal
act in the vessel by whose sovereign it is not prohibited. The
intention to incur this extra risk should be communicated ; because
the insurers should be enabled to take it into consideration. But
in practice, our policies generally, if not universally, except
expressly the risks arising from prohibited trade.

The parties may always agree to add such risks, or except such,
as they choose.



SECTION XXTT.

DEVIATION.

As the insurers are entitled to know, either from information
given them, or from the known course of the trade, what risks they
assume, it is obvious that the insured have no right to change those
risks, and that, if they do, the insurers are not held to the new risk.
Such a change of risk is called a deviation ; it certainly discharges
the insurers ; and although the word originally meant in law what
it means commonly, a departure from the proper course of the
voyage, it now means, in the law of insurance, any departure from
or change of the risks insured against. And it discharges the in-
surers, although it does not increase the risk, as they have a right to
stand by the exact bargain they have made. There may be a devia-
tion while the ship is in port ; or where the insurance is on time,
and no voyage is indicated. And a very slight deviation may suffice
to discharge the underwriters.

But no deviation discharges the insurers, or, in the language of
the law, no change or risk is a deviation, unless it be voluntary, that
is, not if there was or seemed to be a sufficient necessity for it.

The proper course a departure from which is a deviation ie
always the usual course, provided there be a usage ; for a master
is not bound to follow their track wherever one or two have gone
before, but must be allowed his own reasonable discretion. If there



386 MARINE INSURANCE.

be no course so well established that every one would be expected
to follow it, the master must go to his destined port in the most
natural, direct, safe, and advantageous way.

An extraordinary and unnecessary protraction of a voyage would
bo a deviation. But the mere length of the voyage, without other
evidence, would not prove this.

Liberty policies, so called, are often made. That is, the insured
is expressly permitted to do certain things, which, without such per-
mission, would constitute a deviation. And a large proportion of
the cases on the subject of deviation have arisen under these poli-
cies. Most of the phrases commonly used have been construed by
the courts ; and generally quite strictly. A liberty to " enter " a
port, or " touch" at a place, permits a ship to go in and come out,
but it permits little delay, because for delay the word " stay " or
" remain " is necessary.

It is certain that no permission is necessary for any change of
course or risk that is made for the saving of life, or even for the
purpose of helping the distressed. Always provided, however, that
the change of course, or the delay, was no greater and no longer
continued than this cause for it, actually and rationally considered,
required. It is, however, equally well settled, that a change of
course or of risk for the purpose of saving property is a deviation
not justified by its cause'. A delay for the purpose of towing a
vessel is certainly a deviation, unless there are persons on board
the vessel which is towed, and they can be saved in no other
way.

Sometimes it is intended that a ship shall visit many ports, and
even go backwards and forwards, at places between the port from
which she sails and that at which the voyage is finally to terminate.
Such purposes as this are sometimes provided for by a policy on
time ; and sometimes by express permission to go to and trade at
certain ports.

If permission be given to enter and stop at a dozen different ports,
the vessel may omit any of them, or the whole, but must visit in the
proper order all to which she does go. She cannot go back and
forth.

The substitution of a new voyage for that agreed upon is of course



THE TERMINI OF THE VOYAGE AND OF THE RISK. 387

a deviation, and one that can seldom or never be justified by any
necessity, so as to carry the insurer's liability on the new voyage. If
an entirely new voyage is intended, and a vessel sails upon it, but in
the same direction in which she would have gone on the insured
voyages, the policy never attaches, and the premium is never earned,
because the ship never sails on the insured voyage. But if the ship
is intended to pursue the insured voyage to its proper terminus, but
at a certain point of the voyage to deviate by going into another
port, there is no deviation until that point is reached, and the devia-
tion actually begun ; because it is certain that no mere intention to
deviate discharges the insurers until it is carried into execution ;
and they are liable for a loss happening before the deviation.



SECTION XXIII.
THE TERMINI OF THE VOYAGE, AND OF THE RISK*

THESE must be distinctly stated, whether they be termini of time

or place. A policy from to , or from B to , or

from to B, would be void. Nor would it be any better if the

termini were named with apparent distinctness, but in such wise as
to mean nothing, or nothing sufficiently certain.

A policy takes effect from its date, if the bargain was then com-
plete, although not delivered until afterwards. Arid it may be
remarked, that, if there be an unreasonable delay in the sailing of
the vessel, the policy never attaches, for the bargain is considered
as annulled.

A policy on a vessel " at," such a place attaches when she is
there in safety. But if there were a policy " to " a place, and an-
other was made out between the same parties " at," or " at and
from," the same place, the law would presume that the parties in-
tended that the second policy should attach whenever the first one
ceased by the arrival of the ship, without reference to the condition
of the ship or her peril at the time.

A policy on goods attaches to them at the time when it would
have attached to the vessel had she been insured. The cxter.t



388 MARINE INSURANCE.

which should be given to the meaning of the word " port " is some-
times a question of some difficulty ; but in general all places are
within a port which belong to it by mercantile usage and acceptance,
although not within the same municipal or legal precinct.

" At and from " covers a vessel in a port, as well as after she
leaves it. " From " only covers the vessel after she gets under way.
" At and from," applied to goods, does not cover them in the port
when they are on shore and warehoused, nor until they become sub-
ject to marine risk, by being water-borne. They are, however,
covered, not only when they reach the ship, but as soon as they are
put on board of boats or lighters, or any other usual water convey-
ance to the ship. And if insured to a port, they continue covered
after they leave the ship by any usual conveyance for the shore,
until they are safely landed. The word " at," applied to an island
or a coast, may embrace all the ports therein, and cover the ship
while sailing from one to another. " To a port and a market,"
covers a voyage to the port, and thence to every place to which, by
mercantile usage or reasonable construction, a ship may go thence
in search of a market ; and even to return to that port, if honestly
with intent to learn there where a market could be found.

If the insurance be to " a port of discharge," this does not ter-
minate if the vessel goes to a port for inquiry, or for needful refresh-
ment or repair. If it be " a final port of -discharge," the insurance
ceases upon such parts of the cargo as are left at one port or another,
and continues on the ship, and on all the goods on board, until
arrival at the port where they will be finally discharged.

It is generally provided in time policies, that, if the vessel be at
sea at the expiration of the time agreed on, the risk shall continue
until her arrival at a port of discharge, or at her port of destination.
If then, before the expiration of the time, she is actually at sea, or
has broken ground for the voyage, or if, when the time expires, she
is in a port of necessity or restraint, she is considered at sea, but not
otherwise.

The English policies and our own contain a provision that the
insurance continues on the ship " until she shall be arrived and
moored twenty-four hours iu safety ; " and on the goods until they
be " landed," or " safely landed."



TOTAL LOSS AND ABANDONMENT. 389

Under this clause, the ship is insured until moored in safety, so
far as the perils insured against are concerned, but not against the
peculiar and local dangers of the port, or the possibility that a tem-
pest there might injure her when moored ; for these dangers con-
tinue to exist as long as she stays there, and the liability of the
insurers would never terminate. If she enters the harbor, and,
before she is moored, is blown off, or ordered into quarantine, she
is insured until this delay ceases and she is safely moored in port.
And if before or within the twenty-four hours a dangerous storm
begins, but does no damage to her until after the expiration of the
twenty-four hours, the risk has terminated, and the insurers are not
liable.



SECTION XXIV.
TOTAL LOSS AND ABANDONMENT.

THE law of insurance recognizes an actual total loss, and also a
constructive total loss. It is actual when the whole property passes
away, as by submersion or destruction by fire. It is a constructive
total loss, when the ship or goods are partially destroyed, and the
law permits the insured to abandon the salvage or whatever is saved,
to the insurers, and claim from them a total loss. By " abandon-
ment " is meant, in insurance law, the transferring of the property
insured, or what is left of it, to the insurers. The word is used,
because originally the insured gave up, renounced, or abandoned
the property, saying to the insurers, we will have nothing more to
do with it, and you may do with it what you like. And the word is
still always used, although now it means a transfer. And in the law
of insurance, a constructive total loss is a partial loss made total by
an exercise of the right of abandonment. That is, the actual loss
took from the insured a part, and the abandonment took the rest,
and so they have lost all. A constructive total loss is sometimes
called a " technical " total loss.

The abandonment, we say, transfers all that remains of the prop-
erty to the insurers. If nothing remains, or if that which remains
has no value, there need be no abandonment, and this is an actual
total loss.



390 MARINE INSURANCE.

The insured never need make an abandonment if he chooses not
to do so. And if from such choice or neglect he makes no aban-
donment, his claim against the insurers is still valid ; but it is a
different claim from that which it would have been if he had aban-
doned, because it is now to be settled as a partial loss, of which we
shall speak hereafter. For it is the purpose and effect of an abandon-
ment to convert an actual partial loss into a constructive total loss.
And if he makes an abandonment when he has no right to make it,
such abandonment is wholly inoperative, unless the insurers choose
to accept it ; but if they accept it, they must settle the loss as a
total loss.

The topics in relation to this subject which we will consider
are: 1. The necessity of abandonment. 2. The right of abandon-
ment. 3. The exercise of this right. 4. The acceptance of the
abandonment. 5. The effect of the abandonment, or of the absence
of abandonment.

1. Of the Necessity of Abandonment It is said, that if a ship
be completely wrecked, and reduced to " a mere congeries of planks
and iron," or if she has not been heard from for a sufficiently long
time, there need be no abandonment, and the insured may claim as
for a total loss, without one. In either case, or any other case, if
the insurers pay a total loss, they are entitled to whatever shall
come to hand of the property insured. And it is usual, and we
think more proper, to abandon in both of these cases.

2. Of the Right of Abandonment The insured cannot convert
every partial loss, however small, into a total loss, by abandonment,
transferring the damaged property to the insurers. But by a rule
which is nearly universal in this country, and not unknown abroad,
if the damage by a peril insured against exceed one-half of the
value of the property insured, whether ship, goods, or freight,
he may abandon the property to the insurers, and claim as for a total
loss. But if the vessel actually reaches her destined port, she can-
not be abandoned, although the repairs would cost more than half
of her value.

When we speak in another section of partial loss, it will be seen



TOTAL LOSS AND ABANDONMENT. 391

that, by the established usage of this country, an allowance of
" one-third, new for old," is always made. This means, that if a
new thing were given for an old one because the old one had been



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 39 of 70)