what particular default, was not ascertained. The captain had also left the ship before the time of the actual loss. It was holden, that the underwriter was discharged; Lord Kenyon, C. J. observing, that in this case the captain did not perform his duty, for he had no pilot on board at the time when the accident happened; and it is one of the things implied in contracts of this kind, that there shall be some person on board the ship apparently qualified to navigate her. If the underwriters had been previously informed, that there would be no pilot on board during the ship's sailing up the river Thames, probably they would not have undertaken the risk. On the ground, therefore, that there was no pilot on board the vessel when the accident happened, he was of opinion that the underwriter was discharged (54). Where a vessel, engaged in the southern whale and seal fishery, and with liberty to chase and capture prizes, is insured in August, 1807, with a retrospect to the first of August, 1806, although at the time of her insurance she was not competent to pursue all the purposes of her voyage, her crew being reduced by death and casualties; if she had a competent force to pursue any part of her adventure, and could be safely navigated home, she is to be deemed sea-worthy. z Hucks v. Thornton, 1 Holt's N. P. C. 30. C. B. Gibbs, C. J. (54) Another question was agitated, viz. Whether the defendant would have been answerable, if there had been a pilot on board, whom the captain believed to be of sufficient skill, but who was not duly qualified under stat. 5 G. 2. c. 20. The court declined giving an opinion, as in the case before them no pilot was on board. Pilotage from Dover, Deal, and the Isle of Thanet, up the rivers Thames and Medway, is regulated by statutes 3 Geo. 1. c. 13. 7 Geo. I. c. 21. and 43 Geo. 3. c. 152. Pilotage down the Thames, and through the North Channel, to or by Orfordness, and round the Long Sand-Head into the Downs, and down the South Channel into the Downs, and from or by Orfordness up the North Channel and the Thames and Medway, by stat, 5 Geo. 2. c. 20.; and pilotage into or out of the port of Liverpool, by stat. 37 Geo. 3. c. 78. See Abbott's Law relative to Merchant Ships, p. 168. ed. 2d. See also modern regulations as to pilots in recent statutes 47 Geo. 3. Sess. 2. c. 70. Local, 48 Geo. 3. c. 104, continued and amended by 52 Geo. 3. c. 39. 5. Re-assurance. Re-assurance is a contract made by the first insurer or underwriter, with a view of securing himself from a risk, by throwing it on other underwriters, who are termed re-assurers. This is allowed in almost all the trading countries in Europe, and was permitted by the law of England, until the stat. 19 G. 2. c. 37., by the fourth section of which re-assurance is prohibited, except in three cases: 1. The insolvency; 2. The bankruptcy; 3. The death of the insurer: and even in these cases, it must be expressed in the policy to be a re-assurance, and the re-assurance must not exceed the amount of the sum before assured. Although the first section of the above-mentioned statute does not extend to foreign ships, yet the fourth section does. Consequently a re-assurance, even by a foreigner on a foreign ship, is illegal. 6. Wager Policy-Stat. 19 G. 2. c. 37.-Interest of Assured. An insurance being a contract of indemnity, its object is not to make a positive gain, but to avert a possible loss. Hence, as a person cannot be said to be indemnified against a loss which can never happen to him, a policy without interest is not an insurance, but a mere wager only. Such policy, therefore, is properly denominated a wager policy. Although contradictory decisions are to be found in the books, as to the legality of wager policies, before the statute 19 G. 2., yet they have been recognised as legal contracts by modern judges; and it seems now to be admitted", that by the law of merchants, and particularly by the law of England, as it stood at the time of passing the act 19 G. 2., a wager policy, in which the parties, by express terms, such as the words" interest or no interest," or, " without proof of interest," disclaimed the intention of making a contract of indemnity, was then (contrary to older determinations) deemed a valid contract of insurance; but that a policy containing no such clause, disclaiming or dispensing with the proof of interest, was to be considered as a contract of indemnity only, upon which the assured could never recover without proof of an interest (55). But it having been found by experience, a Andree v. Fletcher, 2 T. R. 161. Lucena v. Craufurd, 3 Bos. & Pul. 101. (55) This opinion of Chambre, J. is confirmed by an observation that the making assurances, " interest or no interest, or without further proof of interest than the policy," had been productive of many pernicious practices, and by introducing a mischievous kind of gaming or wagering, under the pretence of assuring the risk on shipping and fair trade, the institution and laudable design of making assurances had been perverted; and that which was intended for the encouragement of trade 'and navigation, had, in many instances, become destructive to the same: it was enacted, by stat. 19 G. 2. c. 37. s. 1.," that no assurances should be made by any persons, bodies corporate or politic, on any ships belonging to his majesty, or any of his subjects (56), on any goods laden, or to be laden, on board such ships, interest or no interest, or without further proof of interest, than the policy, or by way of gaming or wagering, or without benefit of salvage to the assurer, and that such assurances should be void." But by s. 2. it is provided, "That insurances on private ships of war, fitted out by any of his majesty's subjects, solely to cruize against his enemies, may be made by or for the owners thereof, interest or no interest, free of average, and without benefit of salvage to the insurer." And by s. 3. it is also provided, "That any effects from any port or places in Europe or America, in possession of the crowns of Spain or Portugal, may be insured in the same manner as if this act had not been made." Having detailed the provisions of the stat. 19 G. 2. c. 37., it will be necessary briefly to consider what that interest is, the protection of which is the proper object of a policy of assurance. And this is to be collected from considering what of Lord Hardwicke, in a case which was decided before the passing of the stat. 19 G. 2. c. 37. Speaking of the difference between insurances from fire and marine insurances, he says, " in the insurance of ships, interest or no interest' is almost constantly inserted, and, if not inserted, you cannot recover, unless you prove a property." Per Lord Hardwicke, C. in the Sadler's Company v. Badcock, 2 Atk. 556. (56) In consequence of these words it has been holden, that this section does not apply to the case of foreign ships, and that insurances, "interest or no interest" may be made upon them. Thellusson v. Fletcher, Doug. 315. And although the words "interest or no interest" are omitted in the policy on a foreign ship, yet in declaring on such policy, it is not necessary to aver that the assured had an interest. Craufurd v. Hunter, 8 T. R. 13. Nantes v. Thompson, 2 East, 385. is the nature of such contract. Now insurance is a contract, by which the one party, in consideration of a price paid to him adequate to the risk, becomes security to the other, that he shall not suffer loss or damage, by the happening of the perils specified to certain things, which may be exposed to them. This being the general nature of the contract, it follows, that it is applicable to protect persons against uncertain events, which may in any wise be of disadvantage to them; not only those persons, to whom positive loss may arise by such events occasioning the deprivation of that which they may possess, but those also, who, in consequence of such events, may have intercepted from them the advantage or profit, which but for such events, they would acquire according to the ordinary and probable course of things. That a person must somehow or other be interested in the preservation of the subject-matter exposed to perils, follows, from the nature of this contract, when not used as a mode of wager, but as applicable to the purposes for which it was originally introduced; but to confine it to the protection of the interest which arises out of property, is adding a restriction to the contract which does not arise out of its nature. Interest, therefore, with reference to the subject under consideration, does not necessarily imply a right to the whole, or a part of a thing, nor necessarily and exclusively that which may be the subject of privation, but the having some relation to, or concern in, the subject of the insurance, which relation or concern, by the happening of the perils insured against, may be so affected as to produce a damage to the person insuring: and where a person is so circumstanced, with respect to matters exposed to certain risks, as to have a moral certainty of advantage but for those risks, he may be said to be interested in the safety of the thing. Having endeavoured to explain the nature of an insurable interest, it will be proper to add, that it is not necessary such interest should be indefeasible; for the consignee of goods, under a bill of lading, has an insurable interest in such goods, although they may be stopped in transitu on their passage home. So also has an executor before probate. In like manner it has been holden, that where a ship was taken as prize by the conjoint forces of the army and navy, the captors, before condemnation, had an insurable interest under stat. 45 G. 3. c. 72. s. 3. whereby the crown gives up its right in the prize to the captors, although such interest was defeasible, as well by the release of the c Per Lawrence J. in Lucena v. Crau- d Per Lord Ellenborough, C. J. 11 furd, D. P. 2 Bos. & Pul. N. R. 300, East, 028. where this subject is very elaborately discussed. crown, as the adjudication of the court of admiralty. The owner of a ship, who has chartered her for a particular voyage, has an insurable interest in the ship during that voyage, although the charter-party contain a stipulation, that in case the ship be lost, the charterer shall pay the owner the estimated value of the ship'. X. Evidence. In order to support his action, the plaintiff must be prepared with the following proof: 1. The policy must be produced in evidence, and the subscription of the defendant must be proved. 2. Evidence must be given of the interest of the insured in the subject-matter of the insurance (57). In insurances upon ships, the mere fact of the possession of the assured, as owners, is sufficient primâ facie evidence of ownership, without the aid of any documentary proof or title-deeds on the subject, such as the bill of sale or ship's register, unless such further evidence is rendered necessary in support of the primâ facie evidence of ownership, in consequence of the adduction of some contrary proof on the other side: As in an action on a policy of insurance on freight", where the interest in a ship and its earnings were alleged to be in four persons, who were partners in trade, and it was proved e Stirling v. Vaughan, 11 East, 619. 2 Camp N. P. C. 225. S. C cited in Robertson and others v. Hamilton, B. R. M. 52 G. 3. f Hobbs v. Hannam, 3 Camp. N. P. C. 93. g Robertson v. French, 4 East, 136. See also Thomas v. Foyle, 5 Esp. N. h Camden v. Anderson, 5 T. R. 709. (57) In Amery v. Rogers, 1 Esp. N. P. C. 207. where an action was brought on a policy of insurance on a ship, Lord Kenyon, C. J. was of opinion, that the proof of the insured having exercised acts of ownership, in directing the loading, &c. of the ship, and paying the people employed, was sufficient proof of interest. And in M'Andrew v. Bell, 1 Esp. N. P. C. 373. where the insurance was on a ship and her cargo, the plaintiff, in order to prove interest, produced the bill of lading, and the captain proved that it was his bill of lading, and that he had the goods specified in it on board. Lord Kenyon, C. J. held, that the interest was sufficiently proved, |