Of the usual clauses and formal requi Policies are Policy must specify the sum insured. If the aggregate sum is expressed on the policy, it is not requisite that the amount of each separate subscription should also appear. 15. The Subscription. § 32. The only parties who sign their names at the foot of the policies, in other words, subscribe them, are the insurers, who are hence called the under-writers or sub-scribers. In policies of insurance, effected with private underwriters, where, as we shall presently see, it is not usual for one person to take upon himself the whole risk of the insurance, each underwriter signs or subscribes the policy, adding, on the same line with his name, the sum he intends to insure, which is generally written, not in figures, which are easily altered, but in words at length. The next underwriter to whom the policy is tendered, then, in like manner, writes under the first subscription his name and the sum he means to insure; and the rest follow in order, until the aggregate of the separate sums written opposite to the name of each underwriter, or in technical language, till the "aggregate of their several subscriptions" amounts to the sum which the party effecting the policy desires to protect by the insurance. The 11th section of the 35 G. 3. c. 63. requires, amongst other things, that the policy shall specify the sum insured; hence the practice of stating in the subscription the sum for which each underwriter is severally liable: in addition to this a sum large enough to cover the aggregate amount insured is usually in practice expressed in figures on the margin of the policy, either just under, or just over the stamp. In a policy, in the common form, by an insurance club, where the aggregate sum insured appeared on the face of the policy, but no particular sums were written opposite to the names of the members subscribed to the policy, C. J. Gibbs held that the policy was not void on this ground. (a) It is important to bear in mind, that each underwriter is, Each subscrip- generally speaking, only liable, in case of total loss, to pay the assured up to the extent of the sum he has thus written tract, for each against his own name, i. e. up to the amount of his subscription; or, in case of partial loss, some proportion or aliquot part of tion makes a distinct con underwriter is only liable in case of loss, in proportion to (r) Dowell v. Moon, 4 Campb. 167. Of the usual clauses and formal requi that sum; hence it is that each subscription is said to make a distinct contract; the contract being, that the underwriter is bound by the terms of the policy to the extent of his sites of the subscription, but no farther. 16. The Date. § 33. Hence it is, that the date is not inserted in the body of the policy, but is affixed by each underwriter to that which forms the real contract between himself and the assured, viz. the subscription. The rule, therefore, in this country is, that every underwriter, as he successively subscribes the policy, shall set down accurately the day, month, and year on which does so. policy. the sum he has subscribed. Hence, the date in the body of the policy, but is not inserted in the subscription. The day, month, and year of each he subscription The subscriptions are inserted at the foot of the policy, and generally in the blank space, which is left in our common policies under the memorandum. Supposing the sum which the party effecting the policy wishes to insure be 10007., of which A. B. is willing to take on himself 5007., C. D. 3007., and E. F. 2007., and that they all subscribed for those amounts, as very generally happens, on the same day, then the policy would be thus subscribed and dated: £500 A. B. [name at length] Five hundred pounds. 1st of January, A.D. 1847. £300 C. D. [name at length] Three hundred pounds. 1st of January, A.D. 1847. €200 E. F. [name at length] Two hundred pounds. 1st of January, A.D. 1847. 17. Stamp. §34. As a general rule, every policy must be duly stamped before it is filled up and subscribed, with an amount of duty proportioned to the value of the property it is intended to insure (y): if not stamped in the first instance, it cannot legally be stamped afterwards (z): and a failure to comply with the (y) 35 Geo. III. c. 63. 7 Vic. c. 21. (z) Roderick v. Hovil, 3 Camp. 103. 35 Geo. III. c. 63. § 14. must be accurately inserted therein. Of the usual clauses and formal requi sites of the policy. Recapitulation. clauses con tained in policies. provisions of the Stamp Act in this respect, not only renders the policy void, but entails a considerable penalty upon all those concerned in so effecting or subscribing it. (zz) So important, in practice, is the bearing of the Stamp Act upon policies of insurance, and so many cases have been decided upon the point, that it will be better to consider the subject in a separate section than to treat of it here, where the only object is to give the student an explanation of the terms and requisites of the policy. From what has preceded it appears that the substantial requisites of every policy of insurance are, that it should contain, 1. The name of some party either really or nominally insured. 2. A description of the voyage insured by its termini, and of the commencement and end of the risk. 3. A description of the subject insured. 4. The name of the ship and master. 5. The rate of premium which is the consideration for the risk. 6. The subscription of the underwriter. In point of form, it is also requisite that every policy should be, 1. Dated, and, 2. Stamped. SECT. IV. Of Express Warranties and other occasional Clauses contained in Policies. Express war- § 35. The clauses hitherto considered have been those which ranties and other occasional are to be found in blank in all the common printed forms of policy with the varying exigencies of commerce, however, and the fluctuating character of the political relations between mercantile states, occasions frequently arise which render the assured, on the one hand, desirous of extending the degree of indemnity which is afforded him by the common form of policy; and warn the underwriter, on the other, to limit the amount of responsibility he takes on himself, by declaring in writing on the face of the policy that he will only undertake to indemnify the assured against the usual risks upon certain (zz) 35 Geo. III. c. 63. § 15, 16, 17, imposed a penalty of 500l., which the 7 Vic. c. 21. § 4. has altered to 100%. ranties and specified conditions, which are inserted in writing on the Express warface of the policy, and, in English Law, are called Express other occasional Warranties. The effect of these warranties will be fully discussed hereafter (a): with regard to their form, they are generally expressed thus:" Warranted to sail on or before the 1st day of June, 1847." "Warranted well, this 1st day of June, 1847." "Warranted to depart with convoy." "Warranted neutral ship and neutral property." "Warranted a Dane," &c.; or the word "warranted" is altogether omitted, and the words "to sail," or, "to sail with convoy," &c. alone inserted. The clause of warranty is sometimes introduced into the policy immediately after that describing the voyage; but this is not necessary; all that is essential is, that it should appear somewhere or other on the face of the policy; it need not appear in the body of it (i. e. the written or printed part); it may be written either at the foot (b), or on the margin of the policy (c), and that either in the usual way, or transversely (d); for, wherever or however written, so long as it be on the face of the policy, it will be a good warranty; for whatever is contained in the policy at the time of signing is a part of the contract, and is adopted by the signature. (e) SECT. V. Of the implied Conditions and Terms contained in every Policy. clauses contained in policies. press war conditions and terms contained in every policy. § 36. Besides the different express clauses and stipulations, Of the implied both ordinary and extraordinary, which we have been hitherto considering, every policy of insurance implicitly contains within itself certain terms and conditions, which, though not expressly inserted on the face of the instrument, are of exactly the same binding authority as though they (a) Post, Part II. Chap. III. (b) Blackhurst v. Cockell, 3 T. Rep. 360. (c) Bean v. Stupart, Dougl. 11. (d) Kenyon v. Berthon, ibid. 12. n. (e) Cockran v. Retberg, 2 Esp. 121. De Hahn v. Hartley, 1 T. Rep. 343. conditions and Of the implied were, and combine with the express clauses to make up the terms contained whole of the contract between the assured and the underin every policy. writers. Representation and concealment. Implied warranty of They are, in fact, the terms upon which the parties mutually understand their contract to be based; and are regarded as so much a matter of course, that it would be a needless ceremony to express them in form. If either of the parties fails to comply with any one of these conditions, he entirely precludes himself from taking any advantage of his contract. 1. Thus it is an implied condition in every policy that the assured, at the time of procuring the policy, shall fairly and truly disclose to the underwriters every fact material to the risk which is exclusively within his own knowledge, and which is not embraced by some agreement in the policy: if this condition is not complied with, the policy is void. (ƒ) 2. Again, the assured is understood by the very act of sea-worthiness. procuring the policy to warrant that the vessel is sca-worthy, and in every way fit for the voyage or service on which it is employed; accordingly this warranty, though it is never expressed in the policy, is uniformly implied as a part of the contract. (g) Implied condition not to deviate from the prescribed course of the voyage as fixed by usage. 3. The actual navigation of the ship between the termini of the voyage is, as we have seen, never inserted in any policy; because every underwriter is presumed to be acquainted with the usage of the particular trade he insures, and the usual mode of conducting the voyage on which he has assured the risk: but, although never inserted, the usual manner of making the voyage is supposed to be incorporated in every policy, and as much forms part of its legal effect, as though it were set out in terms on the face of the instrument. (h) 4. It is always an implied condition of every policy, that the ship, in proceeding from one terminus to the other, shall (f) See post, Part II. Chap. I. Representation. (h) Noble v. Kennoway, 1 Dougl. 510. Pelly v. Royal Exch. Comp., (g) See post, part ii. chap. ii. Sea- 1 Burr. 341. worthiness. |