CHAPTER V. (1) Langhorn Cheriot v. Johns. 351. DESCRIPTION OF THE SUBJECT. Section 1. What description is in general sufficient. Ir is necessary that the thing insured, and in some cases also the kind of interest intended to be protected, should be sufficiently set forth in the policy, or that the policy should at least prescribe the way of ascertaining to what the contract is to be (2) Hunter v. applied. As the contract will embrace no other subject than that described, its validity will depend upon the sufficiency of the description.(1) A policy on hats cannot be applied to piece goods;(2) nor one on oil and barilla, to soap; but Emerigon thinks a policy on ingots of gold, may be applied to gold coins (4) Lawrence and utensils, because they might be made into ingots without 1 Caines, 276; changing the substance.(3) This seems, however, to be a very Murray v. Col. refined and somewhat metaphysical reason. Prinsep, Marsh. 316. (3) v. 1. p. 299, 300. c. 10. s. 3. v. Van Horne, Ins. Co. 11 Johns. 302; Rising v. Burnett, Marsh. 730; Law In general a description of goods, freight, a ship, house, or other thing insured, by which it may be distinguished and identified, will be sufficient. If one own a half or any other proportion of a ship or quantity of goods, he may effect insurance generally without specifying his interest, and he will recover for such interest as he has.(4) And a mortgagee may insure in the same way,(5) and so may the charterer of a ship. William Oliver, being owner of one half of the schooner Hiram, chartered the 365; 1 Emer. other half, with an agreement to pay for it in case of loss. He insured the schooner generally, without specifying that he had an interest in one half of her as charterer only, and the policy was held to be valid.(6) rence v. Sebor, 293. c. 10. s. 1. (5) Russel v. Dal. 421. 133. See also Bartlett v. Walter, 13 Mass. Rep. 267. Chief Justice Parker says,' whether a mortgager ought to insure his interest only in the ship, or may insure the ship itself, does not appear to have been definitely settled.'(7) But he seems to be of opinion that the mortgager may insure the ship, in the same manner as if he had made no conveyance. Thompson J. giving the opinion of the court in New York, seems to be of the same opinion.(8) And in another case in New York the (7) Higginson vessel was insured by the mortgager or borrower on bottomry— it does not distinctly appear whether it was a mortgage or bottomry-and nothing was said in the policy about the particular (8) Williams interest intended to be covered. The policy was objected to on this ground, but the court did not regard the objection.(9) There seems to be no reason why the mortgager should describe his particular interest, since he has the same insurable interest as if the property was free of incumbrance.(10) v. Dall, 13 Mass. Rep. 101. v. Smith, 2 Co. 13 Mass. But a lender on bottomry or respondentia cannot insure the ship or goods effectually, unless his particular interest is describ Caines, 19; ed.(1) Lord Mansfield said,' he could not find even a dictum (1) Williams in any writer foreign or domestic, that the respondentia creditor v. Smith, 2 may insure on goods, as goods, and that it was established now Robertson v. as the law and practice of merchants, that respondentia and bot- Unit. Ins. Co. tomry must be specified in the policy.'(2) The reason given by 2 Johns. Cas. Mr. Justice Kent, is, that the risk is peculiar, as 'there is neither 250; Jennings average nor salvage, and a capture does not mean a temporary Co. 4 Bin. taking only, but one that occasions a total loss.'(3) v. Penn. Ins. 251. v. Unit. Ins. Thompson, 11 If captors having no grant from the government, but only a (2) Glover v. Black, 3 Bur. well grounded expectation of a grant of a part or the whole of 1394; 1 Bl. the captured property, have any insurable interest, it has been 396. implied that it cannot be protected by a policy made directly (3) Robertson on the ship, freight, or cargo. Lord Ellenborough says, 'sup- Co. 2 Johns. posing such a chance insurable, must it not be insured specifi- Cas. 250. cally as such chance? Must not the interest be so described in the policy? Can a man who has no right, legal or equitable, either in ship or freight, effect an insurance on either, merely because he has a chance that some collateral benefit may arise to him if the ship and cargo should arrive in safety ?(4) But such (4) Routh r. a policy was held to be valid as applied to the interest of the government in the prize.(5) 'The cargo or freight of the ship America, both or either,' being insured, it was made a question whether the policy might be applied to cargo or freight, at the election of the assured, or must be applied to both in the proportion of his interest in the two subjects. Mr. Justice Sewall, giving the opinion of the court, said, To construe this insurance, at the election of the assured after the event, to be of freight only, exclusive of the cargo, would establish a very unequal contract between the parties. This construction is inadmissible, unless it be the unavoidable import of the words. The contract may be explained to be an insurance of freight, or of cargo, if in the event the assured should have only one of those descriptions of property at risk, and if he should have both, then it is an insurance upon both, proportionably to the interest of the assured.'(6)(a) (6) Faris v. Newburyport Ins. Co. 3 476. If the description designates the subject with sufficient certainty, or suggests the means of doing it, a mistake of the name of the ship or of other particulars, will not defeat the contract.(7) A policy being made, on the Leopard, or by whatever other (7) Poth. h. t. name the same ship should be called, whereof was master for n. 105, and Es trangin's note; that voyage A. B. or whoever else should be master;' it ap- 1 Emer. 159. peared that the ship of which A. B. was master was the Leon- c. 6. s. 2. ard, and had never been called the Leopard. It was insisted in behalf of the underwriter, that the general words were meant only to embrace the case where the ship is called by the name in the policy and also by other names; but Chief Justice Lee was of a different opinion, and held the testimony of A. B. that he was master of the Leonard and never had been so of the (a) The case of Amery v. Rodgers, 1 Esp. 207, was cited by the judge, but it seems hardly to be an analogous case. See 1 Emer. 290. c. 10. s. 1. (1) Hall v. Molineux, cited 6 East, 385. (2) Clapham v. Cologan, 3 Camp. 382. (3) Le Mesurier v. Vaughan, 6 East, 382. Leopard, to be sufficient to identify the vessel.(1) Another vessel bearing the Spanish name, Tras Hermanas, was described in the policy, by a translation of the name, as the Three Sisters, and this was held to be a good description.(2) A policy being made on goods on board of the ship 'called the American Ship President, or by whatever other name the same ship should be called;' the goods were on board of the Presi dent; and it was urged that the admitting the sufficiency of this description, would expose underwriters to fraud. The court did not think the objection conclusive. Lord Ellenborough said, 'I do not see the mischief which may arise to the underwriter in this case. If there had been another ship with the same name as that mentioned in the policy, on board of which the plaintiffs had had goods, there might arise that inconvenience. But if the underwriters cannot be prejudiced by this mistake, the same reason does not apply.'(3) A case somewhat analogous to these was one in which the goods were described in the policy as marked in a particular manner, and the marks were incorrectly described. It was mentioned to the broker who acted for the insurers, that it was doubtful whether the description of the marks was correct, but it was the intention to insure certain goods mentioned in a letter then shown. It was held, that as the identity of the property was clearly made out, and as no imposition could have taken place, the assured might recover.(4) There were no doubt other facts named in the policy besides the marks, to show to what Condy's Mar- goods it was intended to be applied, for otherwise the case shall, 316. n. would go the length of deciding that the contract may be ap plied to property different from that described in it, which would Shed len, 2 B. be a departure from well settled principles. (4) Ruan v. Gardner, See De Symonds r. & P. 153. s. 14. Wesk. tit. Goods. (6) 1 Mag. 9. n. (7) 1 Mag. Section 2. Goods, Wares, Merchandise, &c. The ordinances of some countries have provided that the gene. ral description, goods, wares, and merchandise, should not apply to perishable commodities unless they were particularly named;(5) but there seems to be no such distinction in England or the United States. Similar provisions have been made in some ordinances respecting the precious metals, coined or uncoined ;(6) but they undoubtedly come within the general description, except in the case of clandestine trade ;(7) and there seems to be no reason for this exception, since the fact that the trade is prohibited, appears to involve the question of concealment, or the legality of the contract, rather than that of the sufficiency of the description. Mr. Justice Dampier says, ' Goods, wares, and merchandise, will cover dollars if entered at the custom house,' but not banknotes.(8) Mr. Justice Spencer considered a curricle as coming within this description, and said, Here has been no concealment, the assured was not bound to specify the nature of the Co. Anthon's cargo.'(9) The same remark seems to be applicable to specie or Cas. at N. P. bullion. 164. h. t. No. 5. Ed. 1820. v. Com. Ins. Jewels, rings, &c. not designed for trade, but belonging to the persons of those on board, have been said not to come under this description ;(1) but there appears to be no reason why they (1) Roc. n. should not, if the policy was so intended. The interest of a respondentia creditor in the goods, was held to come within this description, under a usage of the East India trade in England.(2) Lord Ellenborough says, 'Outfit cannot be considered as goods, in any proper sense of that word, that is, as part of the cargo.'(3) 17. (2) Gregory Park, 14. 373. n. 10. Policies are sometimes made on goods by a ship or ships,' as thereafter to be declared, or on goods thereafter to be declared, which leaves it to the assured afterwards to determine the subject. But the voyage is described, and generally the time mentioned within which the ships are to sail. Respectable houses formerly kept large sums constantly insured in this way.(4) (4) Wesk. tit. But there is some hazard of fraud upon insurers in these policies, Ship or Ships, as the assured may have a certain sum insured between particular ports, for a certain time, and within that time ship ten times the amount, and declare the policy to be on the shipment on which a loss may happen, when it cannot perhaps be proved what other shipments have been made. On the other hand this description may operate unfavourably to the assured, as he cannot easily prove that he had no goods at risk, in case he demands a return of premium. In this instance, as in many others, each party confides very much in the good faith of the other. Notwithstanding the uncertainty of this mode of designating the subject, it has been said that the legality of it is too well established by usage and authority to be called in question.(5) The assured may declare to what subject the policy is to be applied after a loss has taken place.(6) If he were required to declare before the loss, or lose the benefit of the policy, the contract would frequently be ineffectual, for it is adopted when no more particular description can be made, and it often happens that intelligence of a loss is received as early as the information by which the insured would be able to make a declaration of his interest. From the necessity of the case, therefore, he must be permitted to declare his interest after he receives news of a loss. It would however be a security to the underwriters in such a case, to insert a condition that the assured should declare his interest immediately after receiving intelligence which would enable him to do it.(7) It has been held that where different shipments come within the description in the policy, the assured may apply it to either. Messrs. Kewley and Ryan, of Liverpool, had insured 1260l. on board of the Elizabeth, from the Island of Grenada to Liverpool, on account of Freeland and Rigby. They had orders to insure 13001. more on account of the same persons, and not knowing by what ship the goods were to be sent, they insured 600l. in London, and 7001. in Liverpool, 'at and from Grenada to Liverpool, on any kind of goods as interest should appear, in ship or ships to sail before the first of August, 1793.' There was nothing in the policy to except the goods by the Elizabeth; and the under (5) Kewley v. Ryan, 2 H. Bl. 343. (6) Harman v. Kingston, 3 Camp. 150. (7) See Weskett, p. 520, tit. Ship or Ships. writers at Liverpool did not know that the insurance was not intended to cover those goods. The Elizabeth sailed in June and arrived safe. The Heart of Oak sailed afterwards, within the time mentioned in the policy, with goods of the assured on board to the amount of 1300l. and was lost. The underwriters in Liverpool refused to pay the loss, alleging that goods to the amount insured, and within the description in the policy, had arrived in the Elizabeth, and if damage had happened to them, the assured could have claimed a loss. But the court said, the assured had clearly a right to apply such an insurance to whatever ship he thought proper within the terms of it.'(1) A case had been previously decided to the same effect. Henchman had been insured 60007. on goods on board of any ship or ships that should sail from Bengal to England between Nov. 1779 and July, 1780. During that time he shipped goods to the amount of 48891. on board of the General Barker, and 4500l. on board of the Ganges; and to cover the whole, had insured 4000l. in another policy. The General Barker was lost, and he claimed the whole loss under the policy for 6000l. He declared on oath before Judge Impey, previously to the loss, that he intended the policy of 6000l. for that shipment. The same objection was made by the underwriters as in the last case. But the court decided that he might apply the policy to that shipment.(2) In another case, upon a policy on goods to be thereafter declared and valued,' in which the assured declared his interest to be on board of the Tweende Venner and Neptunus, and afterwards, finding he had made a mistake, and that he had no goods on board of either of those vessels, declared his interest to be on board of another vessel; Lord Ellenborough instructed the jury that the declaration of interest does not require any assent of the underwriters. The contract between the parties is complete when they have subscribed the policy. The declaration of interest is the mere exercise of power conferred upon the assured. It is generally put upon the policy for convenience, but this is not necessary, nor is there any necessity of its being in writing."(3) In these cases the goods coming within the description and not declared on, were insured in other policies; but where they are not insured in other policies, it should seem, from the reason of the thing, that the policy will be considered as applying to all the goods coming within the description, at least, unless the declaration of interest is made, so that the assured would be bound by it, before a loss is known. Where a policy was on goods. from Marseilles to the West Indies and back, by the Amphitrite and other vessel or vessels;' the assured had goods on board of different vessels to a greater amount than was insured, and those shipped first, to the amount insured, arrived safe, and a loss occurred on those subsequently shipped. It was held that the policy should apply proportionably to all the goods coming within the description.(4) The policy in this case does not seem to have contained any provision for a declaration of interest, but |