What representations are material. Wherever the is made in an swer to ques tions as to ma terial facts, it will, if false, with, the number of men with which she is to be manned (j), and the nature of the cargo she is to carry (k),-being all of them statements of facts manifestly material to the risks, and almost necessarily affecting the underwriter's estimate of it, will, if false, avoid the policy, unless the assured can show conclusively that the underwriter was not in fact influenced by them. In the absence of such proof, the positive representation is presumed to have materially influenced the judgment of the underwriter, and will avoid the policy unless substantially complied with. In all cases where the representation is made in reply to representation inquiries of the underwriter touching points material to the risk, the representation will avoid the policy if not substantially true; and thus, even though it relate to facts which the assured is not bound to disclose, as the age, structure, or condition of the vessel, and generally of all those points which are included in the implied warranty of seaworthiness (1), facts themselves material — the representation will be considered to have influenced the mind of the underwriter, and therefore, if false, will avoid the policy. (1) avoid the policy, even though relating to points which the assured is not bound to disclose. Thus a misrepresentation of the contents will, if mate rial, avoid the policy. On the same principle, although underwriters at Lloyd's are generally presumed to know the contents of Lloyd's lists; of Lloyd's lists yet if a positive misrepresentation be made of some fact material to the risk, as of the time of the ship's sailing, although the truth of such fact may be ascertained by the underwriter, by merely referring to Lloyd's list, still the falsity of the representation will be held to avoid the policy; unless, indeed, distinct and affirmative proof can be adduced that the underwriter actually did inspect the lists. Mackintosh v. 11 M. & Wels. In the absence of such proof, the presumption will be, that he relied upon such representation, and not upon the lists. (m) Where the facts represented are not thus manifestly material to the risks, a presumption as to the materiality of the representation may be founded on the rate of premium. If (j) Pawson v. Watson, Cowp. 785. 693. (1) Schoolbred v. Nutt, Park, 492 8th ed. 1 Phillips on Ins. 249. (m) Mackintosh v. Marshall, 11 Mees. & Wels. 116. sentations are material. tion, if doubt the premium is much lower than would generally be required What reprefor other risks similar to that insured, on which no such representation has been made, the fair presumption is, that the representation induced the underwriter to take them at the lower premium: if the premium were higher than, or the same as, usual, the presumption would be the other way. (n) If there is any doubt as to the materiality of a representation, it is a question which falls exclusively within the pro- tion exclusively vince of a jury. (0) tested by the rate of premium. And is a ques for the jury. In determining, which it is as yet undecided, whether the skilled wit evidence of nesses is admis sible to guide Whether the jury, in forming their judgment on this point, are bound to draw their conclusions simply from the facts, or whether the opinions of witnesses of experience and skill, such as underwriters, insurance brokers, and merchants, may be received to guide their judgment, is, as we have already had occasion to observe, a point on which the English autho- their judgment. rities are not agreed. On principle, it seems to me, that evidence of this nature is as properly adduced in questions turning on the materiality of a representation, as the opinions of medical men are taken with regard to the consequences of a wound in criminal cases, or that of shipwrights with regard to the seaworthiness of a ship, upon the evidence of surveyors. (p) The cases in which the point has arisen have been almost all cases of concealment, and on this account will be more properly examined in the next section; but the principles on which they have been decided are quite as applicable to the subject of representation, and a reference to them is therefore subjoined. (1) (n) See as to presumptions from the rate of premium, Court v. Martineau, 3 Dougl. 161. Bridges v. Hunter, 1 Maule & Sel. 18, 19. (0) M'Dowall v. Fraser, Dougl. 260. Shirley v. Wilkinson, Dougl. 306. n. Willes v. Glover, 1 Bos. & Pull. N. R. 14. Mackintosh v. Marshall, 11 Mees. & Wels. 121. Duer on Representations, 78. 196. note xxii. and the cases there cited. (p) As to which see Beckwith v. Sydebotham, 1 Camp. 117. (q) The cases against the admissibility of the evidence are Carter v. Boehm, 3 Burr. 1905.; Durell v. Bederley, Holt's N. P. 283.; Campbell v. Rickards, 5 B. & Ad. 840.,-for the admissibility of the evidence, directly, Chaurand v. Angerstein, Peake's N. P. 43.; Berthon v. Loughman, 2 Stark. 229.; Rickards v. Murdock, 10 B. & Cr. 527. indirectly, Haywood v. Rogers, 4 Esp. 590.; Littledaie v. Dixon, 1 Bos. & Pull. N. R. 151.; Chapman v. Walton, 10 Bingh. 57. What amounts to a substantial compliance with a representation. If made with the intention to deceive any ever trifling or In the absence, however, of such fraudulent intention, the case is different, and a substantial compliance with the terms of the representation is all that is required. De Hahn v. 1 T. Rep. 345. SECT. IV. What amounts to a Substantial Compliance with a § 195. That which avoids the policy is the falsity of a material representation: having seen where a representation will be regarded as material, let us inquire where it will be regarded as falsified by fact. A representation may in general terms be said to be falsified where the facts to which it relates turn out not to correspond with the statements or stipulations it contains. If the representation be made with the intent to deceive, any want of correspondence between the facts as they occur and the facts as stated, however trivial, or however immaterial to the nature of the risk, will avoid the policy, on the ground of actual fraud. Thus, to avail myself of a case put by Mr. Duer, supposing the owner of a vessel insured "at and from" a foreign port has intelligence of her sailing, and also that a certain number of her crew had died since the commencement of the voyage, if he states truly the fact and time of her sailing, but yet, fearing the effect of the whole truth on the mind of the underwriter, represents the number of deaths to be fewer than he knows to have occurred, then, although the remaining crew may still be abundantly competent to perform the voyage, and the misrepresentation consequently be immaterial to the risk, yet this falsity of statement, being intentional, will avoid the policy. (r) In cases, however, where there is no actual fraud, the rule is different; and it may be laid down, as the result of all the cases, that although a warranty, being in terms written on the face of the policy, will avoid it unless fulfilled to the letter; yet a representation, forming no part of the policy, will, in the absence of actual fraud, be satisfied with a substantial compliance, and shall not be deemed falsified, unless (r) Duer on Representations, 80. to a substantial departed from in some material point: in the words of Lord What amounts Mansfield, "A representation may be equitably and substan- compliance tially answered, but a warranty must be strictly complied with a reprewith." (s) Thus, to take an illustration from a case already more than once referred to, where the representation made as to the ship was, "she mounts twelve guns and twenty men," and it turned out that the ship, in fact, had on board only nine carriage-guns and sixteen men, yet, as she had also on board, in addition to the above, six swivels, and nine boys, and as it was satisfactorily proved that with this force she was stronger than she would have been with twelve carriage-guns and twenty men, Lord Mansfield held, that there had been a substantial compliance with the representation, i. e. no such falsification of it as to avoid the policy. (t) Had these same words been inserted in the policy as a warranty, the policy would have been avoided by her carrying one man or one gun less than the exact number specified. So if a ship which is only represented as neutral be documented and navigated as such, condemnation for breach of neutrality will not avoid the policy, though it would be otherwise if she were warranted neutral. to A ship insured from Bristol to Oporto, and back London, was not described in the policy as belonging to any particular country, but in the letter, directing the insurance, she was described as carrying the Kniphausen flag, and in the broker's instructions, which were shown to the underwriters, she was described as a Kniphausen vessel: it was proved that she was properly documented and navigated as a Kniphausen ship. In the prosecution of her voyage she was captured by the French, and afterwards condemned by one of their admiralty courts, as prize, but not on the ground of wanting proper documents of neutrality. The counsel for the defendant contended, that the sentence of condemnation, by disproving the neutrality of the vessel, (s) De Hahn v. Hartley, 1 T. Rep. (t) Pawson v. Watson, Cowp. 785. sentation. Pawson v. 785. If a ship, represented as cumented and neutral, be do navigated as such, condemnation for breach of neutrality will not licy: aliter, if avoid the po warranted neu- Von Tugeln v. 2 Campb. 151. What amounts compliance with a representation. was a complete bar to the plaintiff's recovery: in overto a substantial ruling the defence, Lord Ellenborough remarked, that in the cases relied on there was an express warranty of neutrality, but that here "the letter and instructions amounted to no more than a representation that the vessel was a Kniphausen vessel, and consequently neutral property; and therefore, if she was in reality documented according to the laws of the state to which she belonged, the sentence of the foreign court would not invalidate the policy, although, had there been a warranty of neutrality, the sentence might have been conclusive. (u) In the absence lent intention to deceive, the falsity of the representation In the same way, although when a ship is warranted to sail with convoy, the policy is avoided unless she sails with convoy on and for the voyage, yet under a representation that she is so to sail, it would seem to be a sufficient substantial compliance if she follows the convoy, and joins it before loss. (v) In all cases, in fact, where there is no intention to deceive, of any fraudu- the falsity of the representation, in order to avoid the policy, must produce such an alteration of the risk represented to the underwriter, as to lead to the reasonable conclusion, that, had the truth been known, he would either not have signed the policy at all, or would have asked a higher premium for so doing. will not avoid the policy, un less it produce such an altera tion in the risk If, upon the whole evidence, it appears doubtful whether such would be the effect of the non-correspondence of the facts with the statement, the assured is entitled to the benefit of the doubt, and the policy shall stand in force. It is obvious that, in carrying out this rule, a much more the risk at all, strict compliance will be required in the case of some repre or asked a higher pre mium for doing So. sentations than of others. (u) Von Tugeln v. Dubois, 2 Camp. 151. See also Nonnen v. Kettlewell, 16 East, 176., where the same point was determined in a case where the assured had represented that his property was neutral, but refused to warrant it as such. (") Christin v. Ditchell, Peake's Additional Cases, 141. The case is not directly ad rem, for the action was brought for breach of promise by the owner of the goods against the owner of the ship, who had induced him to put them on board by representing that the ship should sail with convoy. |