385. whether before or after the risk was to attach, that the ship should deviate, or finally proceed to a different port of destination. On the contrary, the cases relating to the commencement of the risk, and the decisions respecting the right to a return of premium, are pretty direct and strong in support of the opposite (1) 3 Cranch, doctrine. If then, as Mr. Justice Johnson suggests,(1) any principle assumed ought to operate reciprocally, and equally, in respect to both parties, which proposition is too plain to be doubted of, it seems to be a just, if not necessary inference, that the assured is entitled to recover for any loss happening before such intention is manifested by some act, whereby the risks insured against are affected and changed. The assured, in claiming a return of premium, cannot, to entitle himself to such return, take advantage of any alleged intention which was not so manifested by acts, either before the commencement of the risk, or at the agreed time of its commencing, that he would be bound by the intention, and the insurers could fix it upon him; and therefore, since the rule ought to operate equally, the insurers ought not to be able to take advantage of the intentions of the assured to avoid paying a loss, of which the assured could not have taken advantage in claiming a return of premium. If, in any case whatever, the intentions of the assured are to be held not to affect the rights of the parties until some act is done by which the risks insured against are altered, there seems to be very strong reason in favour of following the principle out in all its direct consequences, and holding that in all cases where the risk has commenced, it continues until the risks assured by the underwriters are actually altered, that is, until a deviation actually takes place. But in regard to the commencement of the risk, it might be necessary to consider the intention of the assured, and his agents, in order to put a construction upon acts which might be considered as done in prosecution of the voyage insured, or of another voyage. If the owner of a ship effects insurance upon her for a voyage at and from New York to London, before the ship has arrived at New York, or before any preparation is made for the voyage; and before the arrival of the ship, or any act done in preparation for the voyage, so as to give a commencement to the risk, the assured changes his plan and determines to send his vessel to Lisbon, and before the risk would begin in the ordinary course under such a policy, does acts which unequivocally prove the change of plan, and afterwards actually despatches the ship on a voyage to Lisbon, it would seem reasonable enough that the insurers should not be liable for any loss that might take place in the port of New York, or on the common course from New York to both London and Lisbon, and also that the assured should be entitled to a return of premium. The question, in such case, is, whether the risk has commenced. But since, where the property is apparently within the conditions of the contract, courts would require very distinct and unequivocal proof of purposes and acts of the assured, to show that he is entitled to a return of premium on the ground that the property has not really been within those con- (1) Henkle v. ditions, it seems but just to interpret his acts and purposes by Roy. Ex. Ins. the same principles, where they are to operate against his claim Co. 1 Ves. 317; Barnefor a loss. In determining whether the risk on a voyage, com- wall v. mencing at a particular place, has begun, the fact of the ship's Church, 1 being at that port, and the acts of the assured at such port re- Caines, 217; Talcot v. .Mar. lating to the voyage, and the intentions of the assured in refer- Ins. Co. 2 ence to which such acts are to be interpreted, are certainly of Johns. 130. great importance. His intention in regard to the final port of (2) Phyn v. destination is no doubt entitled to consideration, but his inten- Roy. Ex. Ass. tion in other respects may be equally important in giving a con- 505; Brazier struction to his acts, and there appears to be no reason for in- v. Clap, 5 quiring into his intentions, except for the purpose of determining Mass. Rep. 1. what construction to put upon his acts, which require to be explained. Co. 7 T. R. clearance. The mere circumstance of clearing out for a port different The effect of from that to which the vessel is insured, is not of itself a proof taking a false that a distinct voyage is undertaken, nor is it necessarily such a change of the risk as is equivalent to a deviation.(1) In order to render such a clearance a deviation, or to give it the same effect, it must appear that the risk is thereby increased or changed in the particular case. The circumstance that a deviation takes place through the Deviation by mistake or negligence of the captain, does not prevent its dis- the mistake charging the underwriters, since his mistakes and negligence of the captain. are at the risk of the assured.(2) or negligence A bottomry bond made in the common form is forfeited by a A bottomry deviation.(a) bond is forfeited by a de Change of the In the case of an insurance of a building against fire, an un- viation. necessary and voluntary change and enhancement of the risk will discharge the insurers from all subsequent liability under risk under a the policy. If a building, that is insured against fire, is so al- policy against tered by the assured as to render the risk greater, the insurers fire, dischargwill not be liable for any loss that may happen after the altera-es the insution is made.(b) rers. ure of the in be waived. The insurers may waive taking any advantage of a deviation; In what manwhich must be done in writing to make it binding, at least if it ner a forfeitbe after the deviation, and after the policy is subscribed.(3) It surance inseems to be implied by Lord Kenyon, that if the intention to de- curred by a viate be 'communicated' to the underwriters before subscribing deviation may the policy, this will justify it. He implies this in his opinion in the case of the captain's being limited to one course out of three (3) Crowningdifferent courses of the same voyage; in regard to which, he shield v. New said, 'That was a most important fact, and ought to have been York Ins. Co. communicated to the underwriters.'(4) But this may be only an 142. inaccurate expression of his opinion, that the fact ought to have (4) Middlebeen inserted in the policy, since the mode of communicating wood v. this fact to the underwriters was not the particular subject of Blakes, 7 T. consideration in the case. (a) Harman v. Vanhatton, 2 Vern. 717; Western v. Wildy, Skin. 152; Williams v. Stedman, Skin. 345; Holt's Rep. 126. (b) Stetson v. Mass. Mut. F. Ins. Co. 4 Mass. Rep. 330. 3 Johns. Cas. R. 163. CHAPTER XIII. The conduct of agents may be insured against. RISKS COVERED. Section 1. Acts of Agents. In policies upon lives, and against fire, the peril insured against is of so definite a nature, that no doubt can arise in regard to the description of risk assumed by the insurer. The risks most usually insured against in marine policies are perils of the seas, fire, piracy and theft, barratry, capture, arrests and detentions, and all other perils. This general clause, by which the insurers undertake to make indemnity for all damage and loss that may happen to the property from any peril whatever, is very much narrowed by the construction which courts have given it. The liability of the insurers is subject to one limitation in regard to all the perils assumed by them in the policy. Although a loss may be immediately and directly occasioned by a peril insured against, yet if the operation of that peril in causing the loss is occasioned by conduct of the assured or his agents, which is not insured against, the insurers are not liable for the loss. Thus if the insurer assumes the risks of the seas and fire, but not that of the negligence and misconduct of the agents to whom the assured entrusts the property, and the property is burnt or sunk by the negligence or misconduct of such agents, the insurers are not answerable for the loss. So if the insurer assumes the risk of the negligence and misconduct of agents, employed by the assured, but not of the assured himself, and the misconduct of an agent is owing to the fault of the assured, the underwriter is not responsible for the consequent loss. Whether an insurer can legally bind himself to indemnify a person for his own negligence and misconduct has already been considered. Whatever opinion may be entertained on this subject, it is certain that no underwriter has ever been held, under any contract of insurance, in whatever form, to be answerable for losses directly and evidently occasioned by the fault of the assured himself. But the underwriter may undoubtedly make himself liable to indemnify the assured against the fraud and negligence of his agents, and the only question in this respect, is, whether the contract is so framed as to impose upon him this responsibility. By the common form of the policy, the master of the vessel and the mariners, are the only agents against whose misconduct the assured is protected, and the only acts of the master and mariners usually insured against, are those which amount to barratry. In some places the common form of the policy makes a distinction in regard to this risk, between an insurance upon the ship or freight, and one upon the cargo or profits, barratry being insured against in the latter, but not in the former case. der the com the acts of a No doctrine is better settled than that of the insurer's not The insurers being answerable, under the common form of the policy, for are not anlosses occasioned through the fault of agents employed by the swerable, unassured.(1) Mr. Justice Le Blanc says, 'If a loss happen from mon form of the want of that which the assured themselves ought to have the policy, for provided, it could not have been within the intention of the parties to the contract, that the underwriters should be liable.'(2) (1) 1 Emer. This doctrine is expressed in innumerable instances. It is not 604. c. 12. s. limited to acts of fraud or intentional misconduct. Mr. Justice Kent said, 'The insurers are not liable for losses arising from the mistakes of the owner or master."(3) gents. 39. (2) Bell v. Accordingly the insurers have been held not to be answerable for a loss occasioned by the want of the usual documents Low, 1 Johns. of national character, although there was no warranty or re- Cas. 346. presentation on this subject.(4) The same opinion was given ham v. Hodgrespecting a loss occasioned by the captain's leaving the ship's son, 6 T. R. register on shore.(5) See also Tat 656. (4) Bell v. East, 374. The assured Carstairs, 14 are answer able only for the conduct This doctrine makes it necessary to determine who are the agents of the assured, and in respect to what acts they are agents; for it is a general rule that a principal is answerable only for those acts of his agent, which are done in pursuance of the authority, and in the exercise of the discretion, with which he invests the agent. The owner of a ship constitutes the master and mariners his of agents as agents for the navigation of the ship, and thereby renders himself answerable for their conduct in this respect; but if, while. Un. Ins. (5) Cleveland they are engaged in this employment, they commit theft, or do Co. 8 Mass. an act of violence which is nowise connected with this employ. Rep. 308. ment, and is not an act done in pursuance, and as a part of such employment, this does not concern the owner. such. This distinction is recognised in many instances; but the principles of its application to particular cases, do not seem to have been very definitely settled. It is plain that the master is an agent of the owners, both of the ship and the cargo, to more purposes than the mariners are so. Chief Justice Gibbs has also glanced at a distinction, in this respect, between the owners of the ship and the owners of the cargo. Speaking of a loss by the misconduct of the master and mariners, he says, 'It is extremely hard that the owner of goods should be responsible for a loss occasioned by an act in which he did not concur, and by which he was alone the sufferer.'(6) Sir William Scott also no- (6) Soares v. tices the same distinction.(7) But upon what principles, and to Thornton, 1 Moore, 385. what extent, such a distinction is to be made, has not as yet (7) The Adobeen definitely determined. The owners of the ship are the nis, 5 Rob. agents of the shipper for transporting the goods, for which pur- 256. pose he employs other agents, namely, the master and mariners, for whose conduct in this employment, he is no doubt answerable, in a greater or less degree, to the shipper. And it seems to be more generally implied, that in respect to the acts of agents (1) Cleveland for which the owners of the ship are answerable to the shipper, the insurers of the goods are not answerable.(1) v. Un. Ins. Co. 8 Mass. Ord. Louis The owners of the ship are answerable to the shippers for damage to the goods in consequence of bad stowage, or in consequence of any gross mismanagement, negligence, or unskilfulness of the master and crew.(a) Accordingly in conformity to 28; Code de the principle above stated, the underwriters, whether on ship or Com. a. 164; goods, are not answerable to the assured for losses arising from these causes, unless they render themselves so by insuring against barratry, or by some other specific provision in the policy, which shows plainly that the insurers intended to take upon themselves the risk of the negligence, misconduct, or unskilfulness of the master and crew.(2) 1 Emer. p. 377. c. 12. s. 4; 2 Valin. p. 79. h. t. a. 28; Poth. h. t. n. 120; 1 Mag. p. 50. s. 49; Hodgson v. Malcolm, 2 N. R. 336; The ship is blown up by the carelessness of a mariner. Loss by resistance of search. (3) Grim v. Phoen. Ins. Co. 13 Johns. 451. See 1 Emer. 441. c. 12. s. 18. (4) Robinson v. Jones, 8 Mass. Rep. 536. See 9 Cranch, 63; Col. Mar. 12, 118, 168. It will appear by the cases subsequently cited, in what respect the master and mariners are considered to be the agents of the assured, and for what acts and negligence of theirs, the assured, and not the underwriters, are usually, and under the common form of the policy, considered to be answerable. As the assured is, in general, not entitled to indemnity for the faults and negligence of the master and crew, the question between him and the underwriters, in this respect, is the same that it would be between two sets of underwriters, of whom one should insure against the usual perils, the other against the mistakes, negligence, and unskilfulness of the master and crew. The assured is considered, in all cases, to be his own underwriter, in respect to all risks not insured against in the policy. A vessel, partly laden with powder, was blown up, in consequence of one of the men's negligently placing a candle near the binnacle, which took fire, and by this means the fire was communicated to the powder. It was held that the assured was not entitled to indemnity for this loss.(3) It has been held that if the captain and crew of a neutral vessel resist search, when it is rightfully demanded by bellige rents, or attempt to rescue a vessel sent in by belligerent captors for examination, and the property, in consequence of such resistance or attempt to rescue it, is condemned in a belligerent court, the loss cannot be recovered of the underwriters.(4) But if the search is illegally and unjustifiably demanded and made, we have seen that it is not misconduct in the captain and crew to resist it, and attempt to rescue their vessel.(5) Upon the same principle Sir William Scott holds, that resistance of search is not blameable in the master of a neutral vessel, who has not been informed of the declaration of war.(6) If, in case of shipwreck, the cargo is saved, and the master ne(5) Supr. 145. glects to procure another ship to carry forward the cargo, where (6) The St. Juan Baptista, a ship can conveniently be obtained for this purpose, the insurers 5 Rob. 3. (a) Molloy, b. 2. c. 2. s. 4; Abbott, c. 5; Jacobsen's Sea Laws, 95. b. 2. c. 1. In Great Britain the owners are answerable to the shippers for damage of this description only to the amount of the value of the ship and freight. 7 Geo. II. c. 17. Abb. 262. The law in this respect is the same in Massachusetts. Stat. 1818. c. 122. |