it would be giving an extraordinary effect to that provision, to hold that it gives the assured the right of choosing to which, out of a number of vessels, the policy shall apply, after the event is known. But as no particular form of declaration is requisite, the conduct of the assured in making other insurance specifically on a part of the property within the terms of the policy, as was done in the above cases, seems to be equivalent to a declaration of his interest.

Where the policy contained a provision, that 'the risk was to attach to the proceeds in the return cargo,' the outward bound cargo was not sold, but the consignees purchased and shipped a return cargo, intending to reimburse themselves by the sale of the cargo consigned to them. A loss occurring, the underwriter objected that the return cargo was not the proceeds of that carried out. But the court held otherwise, on the ground that a return cargo purchased on the credit of that exported, was the proceeds of it, within the meaning of the policy.(1) Valin says if the goods described in the policy are exchanged at any port in the course of the specified voyage, the policy will apply to the substituted goods without any express provision for this purpose, where the insurance is to several ports, which seems to imply the liberty of exchanging the goods.(2)

his

(2) v. 2. p.

(3) Seton v.

also Skidmore

An insurance on all lawful goods has been held to apply to con- 78. h. t. a. 27. traband goods as well as others. Mr. Justice Kent said, 'I am of opinion that contraband goods are lawful goods; and that whatever is not prohibited to be exported by the positive law of the country is lawful. The law of nations does not declare the contraband trade to be unlawful. It only authorizes the seizure of the contraband articles by the belligerent powers.'(3) A coach-plate maker and cow-keeper was insured on Low, 1 Johns. stock in trade, household furniture, linen, wearing apparel, and Cas. 1. See plate.' His house was burned, and with it a large quantity of . Desdoity, 2 linen drapery goods, purchased just before on speculation; and a Johns. Cas. question arose whether the linen drapery was comprehended in 77: Juhel r. the description. Lord Ellenborough said to the jury, 'I am 2 Johns. Cas. clearly of opinion that the word linen in the policy does not in- 120, & 487. clude articles of this description. Here we may apply noscitur a sociis; the preceding words are "household furniture," and the succeeding, "wearing apparel;" the linen must be household linen or wearing apparel.'(4)

v.

Rhinelander,

(4) Watchorn Insurance is sometimes made on goods from the time of load-. Langford, 3 ing them on board,' specifying at the same time at what port the Camp. 422. risk is to commence. And in case the goods are not laden on board at the port where, according to the policy, the risk is to commence, there often arises a question whether the policy attaches. It has been decided in a number of cases that the policy did not attach, and in those decisions three different grounds seem to be assumed; one, that it is a condition, in the nature of a warranty, that the goods shall be loaded on board at the place where the risk is to commence; another, that the loading the goods on board at such place is the only event from which to date the commencement of the risk, and this not hav

ing happened, it does not commence; and a third, that the goods do not answer to the description in the policy. The grounds of warranty and the want of commencement of the risk, have been most distinctly alleged in support of these opinions.

A policy was effected on goods by the Brunswick, 'beginning the adventure upon the said goods and merchandizes from the loading thereof on board the said ship at China, to all ports and places whatsoever.' The goods were taken on board at Canton for Europe, whither they were insured, and the vessel put into Bombay, where the goods were trans-shipped, and a cargo of cotton was taken on board the Brunswick for Canton, on account of the assured, which was lost by capture on the voyage. The assured claimed this loss of the underwriters, but the court held that the policy did not apply to this cargo.(1) And it was held in New York, under a policy upon all goods laden on board the Rolla, beginning the adventure from the loading thereof on board the said vessel at Cagliari,' that the hoisting the cargo out of the hold and restowing it at Cagliari, did not amount to (2) Murray e. loading it on board at that place.'(2)

(1) Grant v. Paxton, 1 Taunt. 463.

Col. Ins. Co.

11 Johns.

Section 3. Profits and Commissions.

In regard to a description of profits, it was held by all the judges of England,(3) that a policy described to be upon a ship or goods, could not be applied to profits. It has however been decided in New York, that an insurance 'at and from Cumana to New York, in and with the schooner Rising Sun, on profits on all goods laden and to be laden, &c. which goods are valued at 2500 dollars, the words in italics being written, was a policy on profits, though the valuation seems to refer more directly to the goods.(4) But the written part of the policy controls the printed, and here the insurance appeared, by the written part, to be upon profits.

6

A policy upon goods, and also upon the body of the ship Elizabeth, the said ship, goods, and merchandizes, for so much as concerns the assured, by agreement between the assured and assurers are, and shall be on profits,-the words in italics being written, and the rest of the description printed-was decided to be a policy on profits. And Lord Ellenborough said,' are profits any thing more than an excresence upon the value of the goods beyond the prime cost ?(5) It is said in one case to be the practice in Philadelphia to insure profits under the denomination of goods."(6)

When the insurance is intended to be on profits or commissions, it is generally so described by using those words; but this does not seem to be absolutely necessary. An insurance was made on property in the brig Lavinia.' It was intended to cover the interest of Holbrook, the master, who was to receive a commission of seven and a half per cent. on the cargo on its arrival in America. A loss happened on the homeward voyage. The court said, this word property is very comprehensive, and there

6

can be no doubt that it was the intention of the parties to cover this interest of the master, whether it was to be considered as commissions, or as a specific proportion of the cargo belonging to him. The earnings of the master were completed; when the homeward cargo was laden on board he was entitled to his seven and a half per cent.' And judgment was given for the assured.(1)

Section 4. The Ship.

(1) Holbrook v. Brown, 2 Mass. Rep. 280.

132. n.

By some cases it appears that an insurance of the ship only, covers the hull, sails, tackle, boat, armament, ammunition, and provisions; in others, it seems at first view, that a narrower construction is to be put upon such a description. Mr. Justice Buller, speaking of a policy on the ship, said, 'the provisions are no part of the thing insured,'(2) and the expressions used by him (2) 1 T. R. in another case are of the same import;(3) but his language 127. ought to be considered with reference to the particular subject (3) 1 T. R. under consideration, which was a loss by the consumption of provisions during a detention of the vessel, and the question was whether it should be paid by the insurers on the vessel. Though the provisions were covered by a policy on the ship, it would not follow that the insurers would be liable for such a loss. Accordingly a decision that they were not liable, does not establish that provisions are not comprehended in an insurance of the ship.

Aspinwall, 13

p. 382. See

It has been decided many times that the insurers are not liable for provisions consumed during the detention of the ship, but it has been very distinctly decided also, that a policy on the ship covers the provisions and other subjects above mentioned. Lord Mansfield said, ' in a policy on a ship the insurance is on the body of the ship, tackle and furniture;'(4) and Lord Ellen- (4) Robertson borough, the hull and outfits are both protected by insurance on. Ewer, 1 T. the ship.(5) Weskett says, the outfits comprehend sails, cord- R. 127. age, provisions, armament, and ammunition.(6) In Lord Ken-(5) Forbes v. yon's time the assured in a policy on the ship and furniture, re- East, 325. covered for a loss of the tackle and provisions.(7) Lord Ellen- (6) tit. Outfit borough said, as far as the outfit consists of provisions put on also p. 433, board for the use of the crew, they are covered by an insurance tit. Provisions. on the ship, being in fact part of the necessary furniture, stores, (7) Brough v. and equipment of every ship proceeding on a voyage.'(8) T. R. 208. Whitmore, 4 Emerigon says, that the rigging and boat are covered by a policy (8) Hill v. on the ship.(9) In the United States a similar construction is Patten,8 East, adopted; a policy on the ship is understood to extend to the (9) v. 1. p. sails, rigging, tackle, furniture, boat, and provisions. 179. c. 4. s. 7. Where the policy was on the ship, tackle, and furniture,' for a voyage in the Greenland fishery, the whole court held that the lines and fishing tackle were not comprehended in this description.(10) They are generally insured under the name of outfit, 'which, in a fishing voyage, principally consists in the apparatus and instruments necessary for the taking of fish, seals, &c. and

373.

(10) Hoskins
v. Pickersgill,

Park, 97; 1
Marsh. 127.

(1) Hill v. Patten, 8 East, 373.

(2) Bell v. Bell, 2 Camp. 475.

326.

the disposing of them when taken, in such a manner as to bring home the oil or other produce of the adventure."(1) In the United States the different interests in fishing voyages are universally described as consisting of the ship, the outfits, and the cargo.

Section 5. Freight.

Freight being insured at and from Riga in continuation' of a former policy on freight to the Baltic,' &c. the ship was seized at Riga before the outward cargo was discharged, and accordingly the freight outward was lost. Lord Ellenborough held that the description did not apply to the freight lost, but to that of the return cargo.(2)

6

The question has occurred whether the freight of a part of a voyage can be insured, without expressing in the policy that it is freight of only a part of the voyage. Where an insurance was made on freight of the ship Bethiah, at and from Bourdeaux to Virginia,' and the goods were to be carried in the ship from Bourdeaux to St. Domingo, by the way of Norfolk in Virginia, Lord Kenyon instructed the jury that the underwriters had a right to expect that the goods upon which the freight was payable, were consigned to Virginia, and that the freight payable, namely, that from Bourdeaux to St. Domingo, being different from the freight described in the policy, the assured was not en3) Murdock titled to recover any thing.(3) But what importance could it be v. Potts, Park, to the insurers to be informed, to what place the goods were to 451; Marsh. be carried from Norfolk, or in what ship? Lord Ellenborough said, this opinion was inconsistent with all other cases,' and accordingly, upon a policy on freight from St. Ubes to Portsmouth, the vessel having taken a cargo at St. Ubes for Gothenburg, with the intention of putting into Portsmouth on the voyage, Lord Ellenborough said, the only question is, whether the freight of a voyage may be insured a part of the way. This was a voyage to Gothenburg by the way of Portsmouth, and the freight was to be earned at Gothenburg. The assureds did not deceive the underwriter when they insured their freight to Portsmouth; they did not tell him that the freight was to be earned there, but only that it was an insurance on freight in that voyage.' And Bailey, J. said, 'it does not vary the risk that the assured did not disclose to the underwriters that the ship was to proceed further on a voyage to Gothenburg; for I cannot see what advantage it could have been to them to be informed, that the freight insured would not be earned till the ship arrived at Gothenburg, or what disadvantage it was not to receive such information. (4) And judgment was given for the assured.

4) Taylor v. Wilson, 15 East, 324.

It has been held in New York that where the assured has an interest in the freight by a particular agreement, and not as owner of the vessel, he cannot insure freight generally, but must describe the particular interest. The insurance was, 'at and from New York to the port of discharge in the Mediterranean, upon

LI

the freight of goods laden or to be laden on board the brig Delia.' The assured had sold the vessel with the reservation of the right to receive the freight for the voyage insured, which seems to make his interest precisely that of a charterer who agrees to pay the charter money at all events. The court said, All the interest of the assured was founded on this special agreement, and it could not strictly be denominated freight, since it was not an interest accruing to the assured as owner of the vessel for the use of her. It could not be insured as freight eo nomine, unless accompanied with a disclosure of the peculiar nature of the interest. It would otherwise be an imposition upon the insurer, who when he is asked to insure freight, must presume that he is dealing with the owner of the vessel. The owner has a stronger interest in the management and equipment of the vessel, than a stranger having no such stake in the voyage. And to allow such an interest to be covered under the name of freight, without explanation, would lead to abuse and fraud, by affording an opportunity to cumulative insurances upon the same interest, and interested combinations to destroy it.'(1)

(1) Riley r. The grounds of this decision do not appear to be very satis- Delafield, 7 factory. The court says, the interest of the assured was not Johns. 522. strictly that of freight, which is defined to be the price of transportation paid by the owner of the goods to the owner of the vessel. But was not the assured the owner of the vessel pro hac vice? Suppose the vessel had been chartered for a long time and employed as a general freighting vessel, would not the price due to the charterer from the shippers be freight? If there be any distinction it is merely verbal, but there does not seem to be even this distinction. Freight is the name by which this interest is insured and commonly known, and it seems therefore to be the proper meaning of the word in a policy; if a definition does not comprehend this meaning of the term, it rather proves the defect of the definition than any thing else. In regard to the danger of frauds by the insurance of the same freight in the names of divers persons, the assured must prove his interest before he can recover for a loss, and different persons could as easily prove themselves the sole owners each of a vessel as of the freight. As to the owner's having a stronger interest in the preservation of the vessel; it depends on the fact, whether he has insured at an over-valuation. But somebody is owner and has this interest, of which the insurers have the advantage; besides, the assured himself has the same interest, unless he has overvalued the freight, and there seems to be no reason for assuming, as a general proposition, that persons to whom the freight belongs, whether owners of the vessel or not, have a greater in- (2) Oliver v. terest in the loss of the subject, than the assured in general have Greene, 3 in regard to other subjects. This case is opposed in principle to Mass. Rep. a number of others above cited, in which it was held that the N. A. Ins. Co. charterer might insure freight generally, and here the assured 13 Mass. Rep. was to all intents and purposes the charterer.(2) The rule 61; Bartlett adopted by the court in New York seems more likely to defeat . Walter, 13 fair contracts, than to prevent fraudulent ones.

133; Locke v.

Mass. Rep.

267.