Page:The American Cyclopædia (1879) Volume IX.djvu/329

 INSURANCE 31T policy attaches, the law may not be quite set- tled as to the effect of a subsequent unsea- worthiness. It certainly has no effect upon a previous loss ; and we consider the better rule to be, that it only suspends but does not de- stroy the insurance. Thus if a ship loses her best bower anchor, this has no effect upon a previous loss, nor upon a loss that occurs be- fore the anchor can be replaced. If the vessel reaches a port where she might replace the anchor, and does not, and sails and meets with a loss, nearly all agree that the insurers are discharged ; but some authorities hold the in- surers liable for a loss occurring during such an unseaworthiness, if the loss is not caused by it. Another implied warranty is, that there shall be no false representations, and no con- cealment of material facts; for if there be either of these, the policy'does not attach. In the law of insurance, that is a misrepresenta- tion which, however made, tends materially to obtain for the utterer a contract which other- wise would not be made, or better terms than would otherwise be granted. Concealment is the suppression of a material circumstance, for the same purpose. Such misrepresentation or concealment discharges the insurers, although made unintentionally and only through mis- take; but it has not this effect if withdrawn before the policy is made, or if it ceases to be material before the risk begins. If the repre- sentation relates to the future, a future compli- ance with it is as necessary as a present com- pliance with a present representation. The in- sured is bound to communicate not only ascer- tained facts, but all intelligence, and even ru- mors, if they are such as may reasonably enter into the estimate of the risk; but he is not bound to disclose what are merely his own hopes or fears, nor such matters of general in- formation or public notoriety as are likely to be as well known to one person as to another ; nor anything which the insurers already know ; nor anything expressly provided for in the policy. A substantial compliance with a rep- resentation is sufficient, although it be not so exact as would be required in the case of an express warranty. As nothing prevents the parties from making what agreement they choose, they sometimes omit, or expressly ex- cept, certain risks; or the insured warrants against them, which comes to the same thing. When, as sometimes happens, causes mingle to produce a loss, some of which are insured against and some are not, it may be very dif- ficult to determine whether the insurers are liable. There are many such cases. The general rule is: Causa proxima, non re- main spectatur. But even then it becomes difficult to know what is a proximate cause, and what is a remote cause. Here also the general rule may be given; it is, that insu- rers are not liable for any effects of a peril against which they insure, excepting those which are the natural, direct, and immedi- ate effects thereof. One way in which insu- rers seek to guard against this question, is by having a long list of what are called memoran- dum articles inserted in their policy, or referred to in it. These are grain, hides, and other per- ishable things, which are likely to be injured somewhat, either by slight causes, or without external causes ; and it is provided that the in- surers shall not be answerable for these, unless there is a total loss, or a certain large loss, or unless the loss is caused by stranding ; for in either of these events, it will be probable that the loss is caused by a peril insured against. Another implied warranty of the insured is, that there shall be no deviation ; which means, primarily, that the ship shall go by the direct and usual course to the place whither she is bound. It means also, by construction and usage, not only that there shall be no depart- ure from the proper course, but no unneces- sary delay, or, more extensively, no material departure from or change in the risks insured against, not justified by a good cause. Nor need this change increase the risk, for the par- ties have a right to hold each other to their agreement. There may be deviation while a ship is in port, or where no particular voyage is indicated, the insurance being on time ; and the rule concerning deviation, like nearly all those of the law of marine insurance, is equal- ly in force in the lake and river navigation of this country as in its ocean commerce. The effect of deviation is to discharge the insurers altogether from all subsequent risks. If, when a deviation ceases, all subsequent risks are pre- cisely the same as they would have been had the deviation not taken place, the obligation of the insurers might revive ; but this can rarely be the case. There are cases where a slight deviation discharges the insurers ; but it must have some reality and effect. Delay in commencing or in prosecuting a voyage may be a deviation. Going into a port out of the natural and proper course is certainly one. Liberty is often given in the policy " to en- ter " such a port, or " touch at," or " stop and trade at," or otherwise as the parties may agree ; but such a liberty is usually construed very strictly. A deviation does not discharge the insurers, unless it be voluntary. Any ne- cessity, as for repairs or provisions, or to save life, or to avoid a peril, justifies so much de- viation as it requires. A mere intent to devi- ate has not the effect of deviation. Thus, for example, if a vessel sails from New York in- sured on a voyage to New Orleans, intending at a certain point in her course to bear away for Havana, and is lost before she bears away, the insurers are held. We have already said that the consideration for the contract of in- surance is called the premium ; and this is a small sum of money, for which, in this coun- try, the insured or his agent usually gives his note when the policy is made and delivered, which is called the premium note. This pre- mium is never due in fact until it is earned by the risk, for insurance against which the pre-