arrive, to St. Petersburg, had produced a great sensation on account of the detention which it would occasion; that the Rising Sun must share the same fate, and that her papers had been sent to St. Petersburg;' and the broker did not show the letter to the underwriters, but stated that the ship's papers were sent to St. Petersburg for examination; Lord Ellenborough said to the jury, 'The assured are only bound to communicate facts. The broker did communicate the fact of the ship's papers being sent to St. Petersburg for examination; he was not bound to communicate the sensations and apprehensions which this fact Bell, 2 Camp. produced at Riga.'(1) (1) Bell v. 475. The assured had received letters from the master of the ship at St. Domingo, by which he was informed that the ship would be ready to sail for France between the fifth and tenth of October. It was represented to the insurers that the ship would sail in October. It was the opinion of witnesses, and seems to (2) Chaurand have been that of Lord Kenyon, that this was not a fair disclov. Angerstein, Peake, 43. sure of the intelligence.(2) A representation that the vessel (3) Stewart was expected to be loaded between the 13th and 20th of September, when she was known to have been loaded on the 13th, was held in Scotland to be a misrepresentation.(3) v. Morrison, Mil. 59. An American insured against American capture. A ship and cargo being insured in England from that country to the United States against all risks, American capture or seizure included,' the broker omitted to disclose that the property belonged to Americans. Chief Justice Abbott said, An American subject, to whom a ship and goods are consigned in America, if he knows that he is insured against American capture and seizure, may not only omit to take proper means to prevent loss, but may possibly facilitate it by giving information to (4) Campbell his own government upon the subject.' The policy was accord. Innes, 4 B. ingly held to be void, on the ground that the insurers ought to have been informed that the property belonged to Americans.(4) & A. 423. It is immaterial in what way the insurer is informed of facts. (5) Bowne v. Shaw, 1 The assured true answers! As the assured is excused from disclosing a usage, or the uniform regulations of the trade to which the insurance relates, which circumstances the insurer is presumed to be acquainted with, a fortiori, the contract will not be vacated by the assured's inadvertently omitting to represent any fact, however material to the risk, of which the insurer can be proved to have been informed in any other way.(5) It appears from many of the preceding cases that the assured must make true answers to the inquiries of the insurer respecting circumstances affecting the risk. Such inquiries may make it to inquiries. necessary that the assured should disclose facts respecting which he might otherwise be silent. It has already appeared that circumstances affecting the seaworthiness of the ship need not be disclosed in the first instance by the assured, but he must make a true representation of such facts in reply to the inquiries of the insurer. If the assured is inquired of as to the age of the ship, and the place where she was built, he must answer the inquiries truly.(6) (6) Popleston v. Kitchen, Whart. Dig. 319. h. t. No. 23. This principle is not limited to the subjects of implied warranties. Insurance being made for a voyage upon which the ship had sailed before the policy was made, without a disclosure of the fact that the ship had sailed, the insurer objected that this was a concealment of a material fact. The court said, 'If the underwriter wanted to know whether the ship had sailed, he ought to have inquired,'(1) thereby implying very distinctly (1) Fort v. that such an inquiry would have made it obligatory on the as- Lee, 3 Taunt. sured to give a true answer.. 381. fact is mate The same facts may be material or not according to the par- Whether a ticular circumstances. The time of the vessel's sailing is material and must be disclosed, if known to the assured, where the rial depends on the partivessel appears to be out of time. So in determining whether cular circumthe vessel is out of time; a few days more or less, from the time stances. of the vessel's sailing, are of greater importance in a short voyage, than in a long one.(2) (2) Macdowall v. Fraser, In many instances it depends wholly on the particular cir- Doug. 260. cumstances connected with a general fact, whether that fact is material to the risk. Goods were insured at and from Heligoland to a port or ports of discharge in the Baltic,' on the 8th and 13th of August, without disclosing that the ship, at that time, lay in the Thames. She did not sail for Heligoland until the 27th of that month. Lord Ellenborough said, When a broker proposes a policy to an underwriter on a ship at and from a certain place, it imports either that the ship is there at the time, or shortly will be there; for if she is only to be there at a distant period, that might materially increase the risk. But it has never been understood that the terms of such a policy necessarily imported that the ship was at the place at the very time, so as to make the assured guilty of deception if she were not. It was a question for the (3) Hull v. jury, whether the intervening period materially varied the risk Cooper, 14 in this instance."(3) East, 479. criterion as to The rate of the premium has been considered a circumstance The rate of of some importance in determining whether a fair representation premium a has been made. If the risk appears to have been known by representathe assured, at the time of insuring, to be extraordinary, and tion. yet only the ordinary premium for the voyage was given, it af- (4) Bridges r. fords some presumption of more or less weight against the fair- Hunter, 1 M. ness of the representation.(4) Upon the same principle an ex(5) Freeland traordinary premium is a ground of presuming that the risk was v. Glover, 7 represented to be extraordinary.(5) & S. 19. East, 457. Companies that insure against fire usually adopt certain rules Policies arespecting representations, requiring the assured to make known gainst fire of what materials a building proposed to be insured is constructed, for what purpose it is occupied, and what kind of buildings are situated near to it; whether the goods proposed for insurance are held in trust; what kind of goods they are; the description and situation of the building in which they are stored, and other circumstances showing the extent of the risk; and these rules are made public by annexing them to the policy or otherwise. If these rules are made sufficiently public, the assured is bound to take notice of them, and to make a true and full repre sentation of the circumstances, which he is required by such (1) Newcastle rules to disclose.(1) Fir. Ins. Co. v. Macmorran, 3 Dow, 255. (2) Bufe v. Turner, 2 Marsh. Rep. 46; 6 Taunt. 338. Policies on lives. As far as the published rules of the company do not specify the facts to be disclosed, the representations required to be made will be determined by the general principles already laid down,-facts material to the risk and not known to the insurer, and which he cannot reasonably be presumed to know, must be represented. A person resident at Heligoland wrote, on Saturday, the 11th of July, to the directors of an insurance company in England, for insurance on a warehouse situated in the town of Heligoland,' without stating that the warehouse was separated only by one other building from another warehouse which had been on fire on the same day. The fire was supposed to have been extinguished by eight o'clock in the evening, but it was considered necessary to watch the premises all night. The fire broke out again on Monday morning following, and consumed, among other buildings, the warehouse insured. This was considered to be a material concealment.(2) The same general principles as to representations or concealment, are also applicable to insurances on lives. The assured must make a fair and full disclosure of all the facts within his private knowledge, and which the underwriter is not presumed to know, which might justly be supposed to induce the underwriter to demand a higher premium or refuse the risk. Where the broker said he would not warrant; but from the account he had received he believed it to be a good life;' Lord Mansfield said, 'The broker does not pretend to any knowledge of his own, but speaks from information.' It was held not to be a re (3) Stackpool presentation that the subject was a good life.(3) v. Simon, Park, 648. Marsh. 772. In effecting a policy on the life of Elizabeth Swayne, the broker did not state that she was a prisoner for debt, occupying, however, a large airy room, in the county goal of Fisherton Anger, in a situation perfectly healthy. She was about sixty years old and in good health. The court said, If the imprisonment were a material fact, the keeping it back would be fatal;' but they thought it depended upon the particular circumstances, (4) Huguenin whether this fact was material or not.(4) v. Rayley, 6 Taunt. 186. (5) Bize v. Fletcher, Doug. 285. Section 3. The Withdrawing or Waiver of a Repre sentation. An express warranty or stipulation including a fact represented, or inconsistent with it, will control and supersede the representation, since the written agreement, as far as its express provisions extend, is conclusive proof of the conditions on which the contract is made. A ship being insured to all or any ports or places' beyond the Cape of Good Hope, it was alleged that the assured had represented that she was going to Pondicherry and China.' Lord Mansfield and the other judges held that any such representation was superseded by the description of the voyage in the policy.(5) If a policy be made in behalf of 'whom it may concern,' the underwriter cannot object that he was not informed who were interested, for by subscribing the policy he has agreed to insure any one who may be lawfully interested. In the case of a policy of this description made in New York, the person who effected it resided there, but one of the part-owners resided at Curraçoa, at that time a belligerent colony. It was insisted that this fact ought to have been disclosed. Mr. Justice Kent said,The insurers took upon themselves the risk of property whether belligerent or neutral."(1) (1) Elting v. 157. Where the voyage, as represented in the proposal for insu- Scott, 2Johns. rance, was not worth so high a premium by five or six per cent as that on which the ship actually sailed, yet this representation was waived by the description of the voyage in the policy.(2) (2) VanderIn the case of a policy on the 'Spanish brig New Constitu- voort v. Smith, tion; the description imported and warranted that the brig was 2 Caines, 155. in fact Spanish; it availed nothing that the underwriters knew she was only ostensibly Spanish, for it was agreed in the written instrument what her national character should be.(3) Mass. Rep. Firem. Ins. 135. (5) Supr. 9. (3) Atherton But there is a distinction in this respect between an express v. Brown, 14 and an implied stipulation or warranty. It has already appear- 152. See also ed that the assured must make true answers to inquiries relating Pickering v. to the subject of an implied warranty, which would be futile un- Dowson, 4 less the contract were to be affected by the representations made Taunt. 779. (4) Walden v. in reply to such inquiries. As far as a representation extends,' New York says Mr. Justice Platt,' an implied warranty ceases."(4) The question, whether a usage is controlled by a representa- Co. 12 Johns. tion or will supersede it, has already been suggested. (5) This question seems to depend in some degree upon another, namely, whether a usage, and the course of the trade, are to be considered as equivalent to an express part of the policy. If the construction be, as Lord Mansfield said, the same as if the point of usage were inserted in the contract in terms :'(6) then it should seem, (6) Mason r. if his observation is to be adopted in its strict and literal mean- Skurray, ing, that the assured will be bound by the usage, though he may Park, 191. have represented to the insurers that he intended to depart from it. But Lord Mansfield was speaking of a case where there was no representation as to the point of usage, and to apply his remark to any other case might be forcing it beyond the sense in which it was intended. It appears by some cases that a usage may be qualified and restrained by a representation, but only in such manner that the necessary and plain import of the words of the policy shall remain unimpaired. Thus where the captain was limited by his orders to one out of three courses of the voyage, when it was the usage to leave it to the discretion of the captain to choose either course at the dividing point, the judges said the orders ought to have been communicated to the underwriters,' and' disclosed' to them; they would perhaps have required a larger premium, or not have subscribed;(7) by which (7) Middleit seems to be implied that a representation of the fact that the Blakes, 7 T. captain was limited to one course, would have given the assur- R. 158. wood v. Neglecting to make inquiries may be a waiver of information. ed a right to recover a loss; neither of the judges said any thing of inserting the circumstance of the orders in the policy. The case seems to imply that a representation would have discharged the assured from the obligations arising from the usage. But the question appears to be involved in some difficulty and uncertainty. Instances have occurred in the preceding cases where the insurer, by omitting to inquire respecting circumstances relating to the seaworthiness of the ship, the national character of the property, and its character as contraband of war or not, and respecting the time of the vessel's sailing, has been held, by so doing, to have waived any information concerning those facts, in respect to which the assured is not required in the first instance to make any disclosure. If the facts disclosed suggest distinctly that there are other facts relating to the risk, which are not particularly stated, the insurer may, by neglecting to make inquiries, waive the right of being particularly informed respecting such other facts. Goods were insured on board of the ship Neptune,' lost or not lost, from twenty-four hours after her arrival at her first place of trade on the coast of Africa; during her stay on the coast; and from thence to Liverpool.' Before the policy was effected the assured had received two letters from the person acting in the capacity of captain. In the first letter, dated at Bambia on the 15th of February, 1800, he stated that the crew had been in a dangerous fever;' that close to the river Danger, three canoes came off, and the blacks began to be very impudent; they took a cutlass from the captain, and killed him and one of the landsmen, and the rest of the people were all very much wounded. There are only five left alive in the ship, and I cannot get one man here. We are all very sickly. The blacks plundered the ship of all our clothes, and all our stores are done.' The second letter was dated at Gaboon River, the 21st of April following; in which he said, 'We arrived in Gaboon River on the 24th of March. The natives finding us weakly handed, and our goods taken from us, do as they please. I have nine men on board now. I made mention of the ivory, palm oil, &c. in my last letter. I do not expect to get all my wood till the latter part of next month; then you may expect my sailing. This last letter only was shown to the underwriters. Lord Ellenborough said, 'No underwriter is so little conversant with the African trade, as not to know that ships engaged in it always continue for some time on the coast. The assured laid before the underwriters a letter dated on the 21st of April, by which it appeared that the ship arrived in Gaboon River on the 24th of March preceding, and had then on board a part of her homeward cargo. It was open to them to inquire, if they thought it material, whether that were her first arrival, or how long before she had arrived on the coast. The fair inference from the letter is, that she had been upon the coast for some time, for the writer refers to different articles of the cargo, of which he had made mention in his last letter. If then the underwriters wished for further information |