Lord Chief Justice Lee declared, "that as these are contracts upon chance, each party ought to know all the circumstances. And he thought it not material, that the loss was not such an one as the letter imported; for those things are to be considered in the situation of them at the time of the contract, and not to be judged of by subsequent events. He therefore thought it a strong case for the defendant." The jury found accordingly (a). 2. But it was held in the case of Foley v. Moline (b), the time of the ship's sailing is not always material to be communicated, unless the ship be a missing ship. Or unless another ship which sailed after her has arrived first. In the case of Kirby v. Smith (c), where the owner of the ship Ocean, having sailed in another vessel from Elsineur to this country six hours after the Ocean had sailed for the same place, on the same voyage, had met with bad weather, and still arrived before the Ocean, and then caused an insurance to be made on that ship on a voyage from Elsineur to Hull: it was held that the broker's stating that the Ocean was all well at Elsineur on the day on which she sailed without communicating the above facts, was a material concealment, and that the policy was void. And in another case, Westbury v. Aberdein (d), where a policy of insurance was made upon the ship King George, "at and from Malaga to London, warranted to sail on the 10th October," and the assured communicated to the underwriters that the King George and another vessel, called the. Fruiter, both sailed from Malaga on the 10th October, and the underwriters knew, from the entries at Lloyd's, that the Fruiter had arrived at London some days before: but the (a) See also Webster v. Forster, 1 Esp. 407. Willis v. Glover, 1 N. R. 14. (b) 1 Marsh. 117. See also Fort . Lee, 3 Taunt. 381. Berthton v. Loughman, 2 Stark. 58. (c) 1 B. & A. 672. But it is not necessary to communicate the ar The time of a ship's sailing is not material to cated, unless she be a missing ship, or unless ship, which has arrived a sailed after her, first. assured also knew that the captain of the Fruiter had seen the King George off Oporto on 21st October, when they had parted company by reason of a gale coming on, and did not communicate this fact to the underwriters: the Fruiter arrived on the 30th October, and the insurance was made on the 3rd November, the Court of Exchequer considered that the fact of the two vessels being in safety together on the 21st, and one of them having arrived five days without the other, was a circumstance material to be communicated to the underwriters, and as this question had not been properly submitted to the jury, they granted a new trial, upon payment of costs. So in the cases of Lynch v. Hamilton (a), and Lynch v. Durnsford (b), where goods were insured "on board ship or ships" from the Canary islands to London: it appeared that the agent of the assured, when he made the insurance on the 26th November, knew that one of the ships upon which part of the goods were laden was called the President; and at that time a paper was stuck up at Lloyd's, stating that "the Howard had arrived off Dover from Teneriffe; sailed the 24th; on the 27th, off the Salvages, fell in with the Presi dent, Owens, from Lauzarette, deep and leaky:" but the agent did not inform the underwriters that part of the goods of the assured were on board the President (it did not appear by whom the paper at Lloyd's had been put up), but the report turned out to be unfounded. The Court held, that the agent ought to have communicated his knowledge of the name of the ship, which, being compared with the report at Lloyd's, was material at the time, although that report turned out to be untrue, and his having omitted to do so, the policy was thereby avoided (c). (a) 3 Taunt. 37. (c) It may be doubted whether the assured can in any case effect an insurance upon “ship or ships,” without naming them, if he be ac quainted with their names? It would seem, at any rate, that if the underwriter requires the name, the assured is bound to communicate it, if he knows it. 3 Taunt. 39. ber cargo at L., and sails to G. An insurance is made and on the goods from G. to D. "to begin from the loading." The policy is void, it being a to induce a In an action on a policy of insurance, in the case of A ship takes in Hodgson v. Richardson (a), the ship was insured at and from Genoa, liable to average; her loading consisting of potash, verdigrease, cotton, and other perishable commodities. This loading was put on board at Leghorn the 10th August, and the vessel had lain at Genoa about five months, being originally bound for Dublin; but losing her convoy, she put into Genoa the 13th of August, and lay there till the 5th of January, when she sailed. And the insurance was made the 20th of January; at which time these circumstances were known to the assured, but not communicated to the underwriter. A few days after she put to sea, she was shattered by a storm, and the cargo considerably damaged. The jury found a verdict for the plaintiff; and a new trial was moved for on this ground, that the policy was bad ab initio, for want of a due disclosure of the circumstances. Lord Mansfield." The question is, whether here was a sufficient disclosure; that is, whether the fact concealed was material to the risk run. This is a matter of fact, and if material the consequence is matter of law, that the policy is bad. Now who can say, that no risk was run, during the five months' stay at Genoa, or no damage happened in that period? The policy is founded on misrepresentation: the ship is insured "at and from Genoa, to Dublin; the adventure to begin from the loading, to equip for this voyage.' This plainly implies, that Genoa was the port of loading: and at the trial, all the witnesses said, that by usage, it was material to acquaint the underwriter, whether the insurance was to be at the commencement or in the middle of a voyage." The rest of the Court concurred, and a new trial was accordingly granted. An action in the case of Ratcliffe and another v. Shoolbred (b), was brought on a policy of insurance on goods on board the Matty and Betty, at and from the coast of Africa, (u) 1 Black. 463; ante, p. 576. (b) Sitt. at Guildhall after Trin. 1780. Park Ins. 413. false description calculated belief that G. was the port of loading. The assured knowing that his ship had coast of Africa sailed from the on a certain day, states that she was on the coast on that day, but says sailing. This is a material concealment, policy. to her last discharging port in the British West Indies. The objection made to paying the loss was, that there had been a material concealment or misrepresentation of the true state nothing of her or situation of the ship and voyage at the time of underwriting the policy. The ship had been sent out to trade on and avoids the the coast of Africa, with directions to proceed from thence to the British West Indies and to stop at Barbadoes, if she could get a sale: if not, to proceed to Montego Bay. On the 2nd of October she sailed from St. Thomas's on the coast of Africa, with a cargo of slaves, and was taken on the 6th of December following by an American privateer. A letter was received by a house at Liverpool on the 21st of February, mentioning that the ship was well, and had sailed from St. Thomas's on the 2nd of October. This information was communicated next day to the plaintiffs, who, in consequence of it, wrote the same evening to two different brokers, to get a new insurance on the ship, there having been one before, and another on the cargo, which last was the subject of the present action. In the instructions to the brokers, the plaintiffs say nothing of the ship from the time of her first sailing; but to one of the brokers they wrote thus :-" We should be glad if you would get us 6007. more on the ship, as she is rather long; and we think it not prudent to run so large a risk at so critical a time. We expect to hear soon of her." It had afterwards occurred that the insurance might be made, if intimation was not given of the letter which had been received. The broker, therefore, by direction of the plaintiffs added to the instructions:-" The above ship was on the coast the 2nd of October;" but said nothing of her having sailed from St. Thomas's. The policy was dated the 21st of March. Lord Mansfield.-"The insured is bound to represent to the underwriter all the material circumstances of the ship and voyage. If he do not, though by accident only, or neglect, the underwriters are not liable; à fortiori, if he suppress or misrepresent from fraud. The question is, whether this be one of those cases which is affected by misrepresentation or of a letter from concealment? If the plaintiffs concealed any material part of Concealment the information they received, it is a fraud; and the insurers which the time are not liable." The jury found for the defendant agreeably be inferred is of sailing might to his Lordship's direction. So in M'Andrews v. Bell (a) the underwriter had a verdict, where the assured had, on the 24th of November, received a letter from Lisbon, dated the 8th, stating the ship to be then ready to sail, and did not make the insurance till the 2nd of December, and did not then communicate the letter. material, instructions to sail on the The broker In another case, Fillis v. Brutton (b), the policy was on A broker's the brig Richard, at and from Plymouth to Bristol. Several stated that the letters passed between the plaintiff and the broker who made ship was ready the insurance as to the premium at which the insurance could 24th Dec. be made: at last it was underwritten four guineas per cent. The broker's instructions stated the ship ready to sail on the 24th of December. The broker represented to the underwriter that the ship was in port, when in fact she had sailed the 23rd of December. represented the ship to be in port, when in fact she 23rd Dec. sailed on the This was held to be a mate sentation. Lord Mansfield said "that this was a material concealment rial misrepreand misrepresentation." The jury, however, hesitated: his Lordship then laid down the following as general principles : —“ In all insurances, it is essential to the contract that the assured should represent the true state of the ship, to the best of his knowledge. On that information the underwriters engage. If he states that as a fact which he does not know to be true, but only believes it, it is the same as a warranty. He is bound to tell the underwriters truth. In the present insurance, the only material point is this-Had the ship sailed, or was she in port?" Upon this the jury found for the defendant (c). And in a late case of Rickards v. Murdock and Another (d), Lord Tenterden held, that where a material part of a letter (a) 1 Esp. 373. (b) Sitt. at Guildhall, after Hil. Term, 1782. Park Ins. 414. (c) See Chausand v. Angerstein, Peake, 43. (d) 10 B. & C. 527. But see the observations on the admission of the evidence in this case in Campbell v. Rickards, 5 B. & Ad. 847; ante, p. 538. Evidence of admissible to underwriters is |