loss for which indemnity was claimed; it was held that such a certificate must be produced in order to entitle the assured to recover, and that no equivalent proof would answer. There was, however, some diversity of opinion among the different judges on this subject. Where it appeared that the minister and church wardens wrongfully and unjustly withheld the certificate, Eyre Chief Justice, and Buller and Rook Justices, thought that the production of the certificate could not be insisted upon. They said that the policy, being a commercial contract, was to be construed liberally, and the question was, whether the loss had been fairly incurred; if it had, the refusal of the minister and church wardens was without good cause, and therefore the assured were entitled to recover.(1) But a different opinion was (1) Wood v. entertained by the court of King's Bench. Lord Kenyon said, H. B. 574. Worsley, 2 'It seems to me that it was the intention of the parties that the certificate should precede payment. If there be a condition precedent to do an impossible thing, the obligation becomes single; but however improbable the thing may be, it must be complied with, or the right which was to attach on its being per- (2) Worsley formed, does not exist."(2) v. Wood, 6 T. R. 710. CHAPTER X. WHAT RISKS MAY BE INSURED AGAINST. THE risks in insurance are the causes of loss against which the policy is intended to indemnify the assured. It has already appeared that, in general, persons may be insured against any event, by the happening of which they might sustain a pecuniary damage. But there are some exceptions to this rule, which depend upon the same principles that have been stated respecting insurable interest. A contract of indemnity against any risk is void, if incurring the risk, or permitting indemnity against Illegal risks. it, be in contravention of the provisions or obvious policy of the laws, or an infringement upon the rights of persons not parties to the contract. A person cannot be insured against the loss which he may incur by violating the law. It is an illegal insurance to insure against the consequences of wrongful (3) Anon. 5 acts."(3). Taunt. 606. laws. But a person may be insured against the consequences of vio- Violation of lating the regulations of trade and the municipal laws of a fo- foreign trade reign state.(4) If the vessel or cargo be seized and condemned in a foreign country, for violating their revenue laws, the insurers (4) Supr. 37. will be liable to pay this loss, provided it appears by the policy, The assured may be pro the foreign administration of the law of nations. and the course of trade, that this was one of the risks contemplated by the parties.(1) A valid contract may also be made for the purpose of indemnifying the assured against the administration of the laws of nations tected against by a foreign tribunal. It has at times been a common practice, in some parts of the United States, to insert a provision in a policy containing a warranty of neutral property, that proof of the property's being neutral should be 'made only in the United States.' The construction put upon this provision was, that the parties to the policy should not be affected by any judgment given by a foreign tribunal respecting the neutral character of the property, but the question should still be left open to be considered by the courts of the United States. The assured was by this agree ment protected against a judgment of a foreign tribunal, which should be considered erroneous by the American tribunals. And no question has ever been made as to the legality and validity of such an agreement, but, on the contrary, it has been expressly sanctioned and acted upon in many cases, by the same courts which held that, without such an agreement, the judgment of the foreign court would be conclusive. (1) Valin t. 2. p. 130, the court says, that to trade in foreign countries in violation of their laws, is regarded as an ingenious and laudable species of ad dress. One cannot Knox, 1 Johns. Cas. 340. (3) Earl v. Shaw, 1 Johns. Cas. 317. See A person cannot protect himself by insurance against the loss occasioned by his own fraudulent acts and misconduct. A policy being made against all risks,' the court said it applied to all losses, except such as arise from the fraud of the assured. This limitation is necessary and proper, for it cannot be supposed that the plaintiff was to be insured against his own fraudulent (2) Goix r. acts.'(2) If the assured is guilty of fraud or culpable neglect, his conduct ought not to affect the insurer, and the loss in conse.quence will be his own.'(3) Lord Ellenborough said, in one case that an insurance even against the assured's own acts might be good, if the underwriter was disposed to enter into so hazardous a risk.(4) But this proposition ought certainly to be limited to the mistakes, or at most to the negligence of the assured; since v. an agreement by one party to indemnify another against losses voluntarily incurred, seems to be so obviously opposed to the general interest of a community, that it could hardly be enforced by any legal tribunal. And there is the same objection, in a smaller degree, against sustaining a contract to indemnify a man against the consequences of his own negligence. By such an agreement one man would consent to put himself wholly in the power of another, and it could operate only to the injury of the parties, and of the community of which they were members. Poth. n. 65. (4) Simeon Bazett, 2 M. & S. 94. (5) Anon. 5 Taunt. 605. It was made a question whether the members of a mutual insurance company could bind themselves to indemnify each other for the loss that any one might incur by his own vessel's running down another. The court said, the assured are also 'insurers, and are as much interested to extend the principle of loss as to restrain it ;'(5) and the insurance against this risk was accordingly held to be valid. But the court intimates by giving this reason, that if the contract necessarily made it for the interest of the assured to incur damage, it would for this cause be void. Upon the principle that a man cannot effectually contract to be indemnified against the consequences of his own misconduct, or the losses and damage which he may voluntarily incur, it has been doubted whether he may be indemnified against the acts of the government of which he is a subject. This question was first raised in a case where both contracting parties were subjects of the same government. A vessel insured, was seized by government and converted into a fire-ship. Chief Justice Holt was inclined to the opinion that the insurers were liable, but the case being referred, the point was not decided.(1) (1) Anon. 2 Lord Ellenborough said, that where the assured was a British Salk. 444; 2 subject, he might recover against a British underwriter for a loss Lord Raym. sustained by an act of their own government; that being to- (2) Page v. tally different from the case of a foreign assured; for amongst Thompson, our own subjects, whether the plaintiff or defendant sustain the Park, 130. n. (3) Delano v. loss, it cannot prejudice the interests of the country.'(2) The Bedford Mar. same principle is adopted in the United States.(3) 840. Ins. Co. 10 v. Ins. Co. of (4) M'Bride Mar. Ins. 299. See also Walden v. Phoen. Ins. Co. 5 Johns. In the case of a policy on an American ship from New York Mass. Rep. to Wilmington, N. Carolina, and thence to Dublin, which sailed 347; Odlin on the voyage to Wilmington, but was detained by an embargo Penn. Condy's before she got to sea from that place; Chief Justice Kent, giving Marsh. 508. n. the opinion of the court, said, "It is a very forced argument to liken this case to a contract to do an unlawful act, or to perform an illegal voyage. The voyage commenced before the law existed. It is not the object of the policy to violate any law. It was an indemnity against arrests and detentions, not a resistance of them. Where both parties belong to the same government, the act of the government is as much the act of one party as of the other, and each ought to be equally estopped from taking advantage of it to the prejudice of the other.'(4) But it has been held in some cases that a foreign assured is not indemnified under a policy in the common form, against the acts of his own government, although those acts are arrests and restraints, which are expressly included among the risks assumed by the underwriters. Some Americans, being neutrals, shipped 310; Ogden property for a voyage from the United States to Liverpool, which . New York was insured in England on account of the shippers. A vessel Firem. Ins. belonging to the American consul at Liverpool, was insured Co. 10 Johns. there at about the same time. After the risks had commenced under these policies, the vessel and cargoes insured, were detained in the American ports by the embargo of 1807. Losses being claimed on this account, Lord Ellenborough, who gave the opinion of the court, said, 'In all questions arising between the subjects of different states, each is a party to the public authoritative acts of his own government; and on that account, a foreign subject is as much incapacitated from making the consequences of an act of his own state, the foundation of a claim against a British subject, in a British court of justice, as he would be if such an act had been done immediately and individually by such foreign subject himself."(5) But in a later case the opinion of the same court, given by the same judge, does not confirm this doctrine. A ship and cargo Co. 5 Johns. 177. (5) Conway . Davidson, 10 East, 536; same v. Forbes, 10 Shedden, 10 (1) Simeon v. Bazett, 2 M. & S. 94. (2) 5 Johns. 318. An insurer cannot bind himself to in demnify a fo insurer's go vernment. & seq. belonging to Prussian subjects, residing at Colberg, being insured in England, were seized and confiscated by the Prussian government, under the Berlin decree. The insurers in defence against a claim for the loss, assumed the ground upon which the court had decided the above cases. Lord Ellenborough said, 'There is no doubt that an insurance upon an American ship, against an American embargo, might be good; for not only an insurance against the acts of the assured's own government, but even against his own acts, might be good, if the underwriter was disposed to enter into so hazardous a risk.' He goes on to say that the underwriters in the above cases did not intend to insure against the acts of the American government. 'As the perils occasioned by the acts of the party's own government are held to be excluded, on the reason of the thing, so they may be held to be included whenever the reason of the thing requires it.' And judgment was given for the assured.(1) But it is not said that there was any difference between the policies, or any other circumstance to distinguish the cases; the latter decision, therefore, seems to overrule the former. Chief Justice Kent says, of this supposition that the act of the government is that of its subjects, that the argument drawn from it is too fanciful' to be entitled to any weight.(2) It has been held that a foreigner cannot be indemnified for the hostile acts of the government of which the insurer is a subject. A different opinion was acted upon in Lord Mansfield's time, as reigner a- we have seen, for then an alien enemy recovered in some ingainst the hos- stances of British underwriters for losses by British captures.(3) tile acts of the But such a claim, could not now be enforced, and it was never fully and distinctly recognised to be legal.(4) A neutral assured, however, stands on a different footing, there being no le(3) Thellusson v. Fergus- gal objection to his claim, on account of his national character. son, Doug. Accordingly, in a number of instances, the assured under these 361; Eden v. circumstances have recovered. In some of these cases the proParkinson, perty was neutral at the time when the policy was made, but Doug. 732. (4) Supr. 29. was captured afterwards in consequence of a declaration of war, by the government of the insurers, against the nation to which the assured belonged. One of the cases above cited is of this description. Dutch property was insured in England, and, before the expiration of the risk, was captured by the British, after a declaration of war.(5) In another case, French property was insured in England, and war being declared, the property was captured by the British, and the loss recovered of the British (6) Thellus- underwriters.(6) These cases have been overruled, and the asson v. Fergus-sured in like circumstances could not now recover; the objecson, Supr. See also Plan- tion would not merely lie against them personally, as alien enemies, during the continuance of the war, but would go to the substance of the claim; it being now held that a foreigner cannot be indemnified for a loss by a hostile act of the government of which the insurer is a subject.(7) It is so held upon the same principle on which insurance of enemy's property is void, since to allow the insurance to be effectual in such case, would, says Lord Ellenborough, be 'directly and obviously against the in (5) Eden v. Parkinson, Doug. 732. tamour v. Staples, 1. T. 407. terest of the state, having an immediate tendency to render ineffectual all offensive operations by sea.'(1) was (1) Kellner v. Thus it was held that British insurers of a vessel that Le Mesurier, detained by a British embargo upon all Swedish vessels, were This case is 4 East, 396. not liable for the loss occasioned by this detention, the embargo commented being of a hostile character. Lord Alvanley, and the other upon, 7 judges, were of opinion that the insurers could not legally be East, 451. bound to pay such a loss.(2) (2) Touteng But though the general words of the policy include this risk, v. Hubbard, 3 or it be particularly insured against, and appears to be one of the special objects of indemnity in the contract, yet it was intimated by Lord Ellenborough that the contract might not, for this cause, be void, but might be valid in regard to the other risks, assumed by the underwriters.(3) B. & P. 291. beck v. Potts, An insurer But a neutral may be insured against any act of the government of the insurer, which is not of a hostile nature. An American ship, the Hannah, was insured in England, on a voyage may bind himfrom New York to Havre, in the course of which she was ar- self to indemrested by a British cruiser, and carried into Bristol, to ascertain nify a foreignwhether she had French property on board; there being a er against other than the war at the time between England and France. The loss occa- hostile acts of sioned by this detention was claimed of the underwriters, who the insurer's objected that they could not bind themselves to indemnify a government. neutral for losses consequent upon this detention by their own government. Lord Ellenborough said, in giving the opinion of the court, that an 'American was at liberty to pursue his commerce with France, and to be the carrier of goods for French subjects. The indemnity sought in this case, is not an indemnity to an enemy, or to a neutral forfeiting his neutrality by an act hostilely done by him against the interests of Great Britain, but (4) Barker v. Blakes, 9 an indemnity to a neutral, as such, against the consequences of East, 283. of an act innocently and allowably done by him in the exercise See also Vis of his own neutral rights, and as innocently and allowably, to a ger v. Prescertain degree, controlled and interrupted on our part, in the 184; Kellner exercise of our rights as belligerents.' And on this ground that v. Le Mesuthe detention was not of a hostile character, judgment was given rier, 4 East, in favour of the assured.(4) 396. CHAPTER XI. THE VOYAGE AND PERIOD OF THE RISK. Section 1. At what Time or Place the Risk begins. SINCE the underwriters are liable only for losses arising from The risks the perils insured against, and within the time for which the risk must be suffi ciently deis to continue; it is requisite that the policy should specify what scribed. |