« iepriekšējāTurpināt »
that the foregoing, purporting to be a copy of the protest of the master and a part of the crew of the
bearing date the day of
last, is a true and correct copy of said protest, which was made before me, examined and compared with the original draft of the same, drawn up and recorded in my office, in Book page and following:
In Testimony Whereof, I have hereunto set my hand, and affixed my hotarial seal, this
(100.) A Steamboat Warrant, as used in the Western States. Know all Men by these Presents, That we
(name of debtor) as principal, and (names of owners of the steamboat) owners of the steamboat
as security, are held and firmly bound unto (name of creditor) in the sum of dollars, for the payment of which we bind ourselves, our heirs, executors, and administrators, firmly by these presents. Sealed with our seals, and dated this
nineteen hundred and
The Condition of the above Obligation is such, That, whereas, the said (name of creditor) as plaintiff has sued out of the office of
justice of the peace, a warrant against the steamboat (namo of the steamboat) returnable forthwith; being on a demand for the sum of dollars, and
cents. Now, if the said (name of the debtor) shall satisfy the amount which shall be adjudged to be owing and due to the said plaintiff in the determination of said suit, together with all costs accruing, then this obligation to be void, otherwise to remain in full force.
(Signatures.) (Seals.) Approved,
(Sheriff or Constable)
HOW THE CONTRACT OF INSURANCE IS MADL
making insurance on ships and their cargoes; and the manifold advantages of this method have caused it to supersede the other. But an insurance company is not bound to insure for all who offer, and it has been held that an action will not lie against insurers for combining not to insure for a certain person, however malicious their motive may be.
The contract of insurance binds the insurer to indemnify the insured against loss or injury to certain property or interests which it specifies, from certain perils which it also specifies. The consideration for this obligation on the part of the insurer is the premium paid to the insurer, or promised to be paid to him, by the insured.
The instrument in which this contract is expressed is called a Policy of Insurance. But no instrument is essential to the validity of the contract; for if the proposals of the insured are written in the usual way in the proposal book of the insured, and signed by their officer with the word “done,” or “accepted," or in any usual way to indicate that the bargain is made, it is valid, although no policy be delivered ; and it would be construed as an insurance upon the terms expressed in the policy commonly used by that company.
If proposals are made, on either side, by letter, and accepted by the other party, also by letter, this is a valid contract of insurance as soon as the party accepting has mailed his letter to that effect, if he have not previously received notice of a withdrawal of the proposals.
The form of the policy is generally that which has been used for many years both in England and in this country, with such changes and modifications only as will make it express more accurately the bargain between the parties. And for this pur: pose it may be and is varied at pleasure.
It is subscribed only by the insurers; but binds both parties. The insured are bound for the premium, although no note is given. The date may be controlled by evidence showing wher it was made and delivered; but if delivered after its date, it takes effect at and from its date, if that were the intention of the parties.
It may be effected on application of an agent of the insured,
if he have full authority for this purpose; which need not be in writing. But a mere general authority, even if it related to commercial matters, or to a ship itself, as that of a “ship's hus band," is not sufficient.
A party may be insured who is not named, if "for whom it may concern,” or words of equivalent import, are used. But a party who seeks to come in under such a clause must show that he was interested in the property insured at the time the insur ance was made, and that he was in the contemplation of the party asking insurance. The phrase "on account of owners at the time of loss," or an equivalent phrase, will bring in those who were intended, if they owned the property when the loss occurred, although there were assignments and transfers between the time of insurance and the loss.
Each person whose several interest is actually insured by any such general phrase may demand or sue in his own name.
If the nominal insured is described as “agent" generally, this is equivalent to "for all whom it may concern. And an insurance “ for ” will be read as for all whom it may concern, if that were intended. So, if the designation of the insured be common to many persons, the intention of the parties must decide for whom it is made. Whatever is written on any part of the sheet containing the policy, or even on a separate paper, if referred to or signed by the parties as a part of the policy, is thereby made a part of it.
But things said by either party while making their bargain, or written on other paper, and not so referred to or signed, form 10 part of it. The policy may expressly provide that its terms shall be made definite, especially as to the property insured, by subsequent indorsements or additions. Thus, it is very common to insure property to a certain amount, "from A to B, on board ship or ships, as shall hereafter be indorsed on this policy. And when this or any equivalent phrase is used, the insure requests the insurers to indorse on the policy the name of the vessel, and the amount shipped, as soon as he has notice of it.
Alterations may be made at any time by consent. But a material alteration by either party, without the consent of the other, renders the contract void; although it was made honestly, in the hope or belief of its being assented to. A court of equity will correct a material mistake of fact.
A policy may be assigned, and the assignee may sue in the name of the assignor. If the loss is made by the policy payable “to order” or “to bearer," it will then by negotiable by indorse. ment or delivery, but it is not certain that the transferee can even then sue in his own name. In New York and some other States, not only these assignees, but other assignees of debts or contracts, may sue in their own names.
If the insured transfers the property, unaccompanied by a transfer of the policy with consent of the insurer, this discharges the policy, unless it was expressly made for the benefit of whoever should be owner at the time of the loss, as before stated. There is usually a clause to the effect that the policy is void if assigned without the consent of the insurers. But this does not apply to an assignment by force of law, as in a case of insolvency, or in a case of death. And after a loss has occurred, the claim against the insurers is always assignable like any other debt. And a seller who remains in possession of the property as trustee for the purchaser, or a mortgagor retaining possession, may retain the policy, and preserve his rights.
THE INTEREST OF THE INSURED. The Contract of Insurance is a contract of indemnity for loss. The insured must, therefore, be interested in the pop erty at the time of the loss. The value to be paid for may be agreed upon beforehand, and expressed in the policy, which is then called a valued policy; or left to be ascertained by proper evidence, and the policy is then called an open policy.
This valuation, if in good faith, is binding on both parties, even if it be very high indeed. But a wager policy, that is, one without interest, is void ; and although there be some interest, the valuation may still be so excessive as to be open to the objection that the interest is a mere cover, and that the contract is void because only one of wager. The valuation is void if fraudulent in any respect; as if it cover an illegal interest or peril. And in this case the fraud vitiates and avoids the whole contract, and the insured recovers nothing. And if the valuation is gross and excessive, fraud may be presumed.
The insured may apply his valuation to the whole property, or to that part of it which he wishes to insure ; thus he may cause himself to be insured for one-half of a cargo, the whole of which is valued at $20,000, or for one-half, which half is valued at $20,000; and if the policy says, “Insured $15,000 on half of the ship Scipio (or on her cargo), valued at $20,000,” whether it is meant that the whole ship (or cargo) is valued at $20,000, or the half only that is insured, will be determined by a reasonable construction of the language used. If he owns the whole, the valuation, in general, will be held to apply to the whole; and only to a part, if he owns only a part.
He may value one thing insured, and not another; or may value the same thing in one policy, and not in another ; and then the valuation does not affect the policy which does not contain it. If only a part of the goods included in the valuation are on board and at risk, it applies to them in due proportion to their value.
A valuation of an outward cargo may be taken as a valuation of a return cargo, substituted for the other by purchase, and covered by the same policy.
And a valuation will cover the insured's whole interest in the thing valued, including the premium, unless a different purpose is expressed or indicated.
A valuation of freight applies to the freight of the whole cargo, and if a part only be at risk, it applies in proportion. And it applies either to the whole voyage, or to freight earned by voyages which form parts of the whole, as may be intended and expressed.
If profits are insured as such, they are generally valued, but may be insured by an open policy. If they are valued, the loss of the goods on which the profits were to have been made, implies in this country a loss of the valued profits, without proof that there would have been any profit whatever; it seems to be