Page:The American Cyclopædia (1879) Volume IX.djvu/330

 318 INSURANCE mium is paid. If this risk never takes place, the promise to pay the premium cannot be en- forced; and if it has been paid, the insurers must repay it. Hence it is always in the power of the insured to cancel the policy before the risk attaches, by refusing to put his property un- der that risk. But unless the voyage be aban- doned, a notice of his wish to cancel the policy has no effect. If the whole risk attaches to the whole property for any time whatever, no part of the premium is returnable. If the risk at- taches to a seyerable part of the property only, a proportional part only of the premium is earned, and the remainder is returnable. Clauses are sometimes inserted in policies denning cer- tain contingencies upon which the premium is returnable in whole or in part. The property insured should be described sufficiently to se- cure its identification ; but the interest of the insured need not be described, as whether it is all, or half, or a quarter, or that of an owner, a mortgagee, or a factor. Insurance on a ship covers all the implements and appurtenants ac- tually and properly used for her navigation, al- though not strictly necessary. An open policy on the ship does not cover the freight ; but it is com- mon to cover the freight by a valuation of the ship. One who owns both ship and cargo may insure his "freight," and thereby cover what his ship would earn by carrying for another owner that cargo for the same distance. The insurers are never responsible for the acts of the insured, or for the direct and immediate consequences of those acts ; but they may be for the consequences of the acts or omissions of the master and crew, although they are the ser- vants of the owner, but not if their conduct was in compliance with the owner's orders or instructions. It may be stated as a universal rule, that the insurers are liable only for extra- ordinary risks; for the seaworthiness of the ship implies her competency to meet safely all ordinary risks. Hence they are not liable for any loss which shall be attributed to wear and tear, or ordinary breakage. So, too, insurers are never liable for losses which are the conse- quences of inherent defects or qualities of the property insured, unless these are made active and destructive by a peril insured against, as where hemp rots or lime takes fire from being wet by the effect of storm or wreck. If the losses occur by contraband trade, or a violation of the law of foreign countries, this, we have seen, does not discharge the insurers on the ground of illegality ; but it does discharge them as a risk they never undertook, unless the in- sured had previously to the insurance informed them that the goods or ship would undergo this risk, or the insurers knew this otherwise. American policies commonly enumerate the risks against which the insurance is made. They are usually perils of the sea, fire, barratry, theft, piracy, arrests, and detentions. A general clause, "all other perils," is usually added, but is restricted by the enumeration. Of these perils, the first, " perils of the sea," is by far the most important, and would of itself include some of the others. It covers in general all loss or damage arising from extraordinary action of wind or sea, or from inevitable accidents arising from navigation. But no natural loss, as for example the destruction of a ship through leak- age caused by worms, is a loss by a peril of the sea. Collision is a peril of the sea. The rule of the sea is, that when two ships collide, if neither is in fault, the loss rests where it falls. If one alone is in fault, the whole loss rests on him. If both are in fault, the common law courts let the loss rest where it falls ; but the courts of admiralty divide the loss equally between the parties. For the loss a vessel suffers by colli- sion, her insurers are answerable. It has been held that they were liable for what the vessel they insure had to pay because in fault; but the later and the better rule limits their liabil- ity to the loss actually sustained. To bring a loss within the clause of "theft or piracy," it is said that there must be violence, and that the thieves must not be the crew, unless they are in mutiny ; but this is not certain, and it is now common to use the phrase "assailing thieves," in order to limit the liability of the insurers to a loss from violence from without the ship. "What is barratry has been much disputed. It is an ancient maritime term, and may perhaps be best defined as any wrongful act of the master, officers, or crew, done against the owner. If it be a wrongful act, against him in fact, it may be barratry, al- though mistakenly intended for his benefit. But it must be against the owner of the ship, and is not barratry as against other parties if the act be done by the owner's command or with his consent. In American policies it is now common to add after the word "barratry" the words, "if the insured be not owner of the ship." The effect of this is, that ship owners are not insured against barratry, but shippers of goods are ; and the reason is, that insurers are willing to insure shippers of goods against the misconduct of those they do not appoint, and cannot control, but are not willing to insure ship owners against the acts of their own servants. The termini of the voyage must always be defi- nitely stated (if the insurance be not on time), not only to determine whether there be a devi- ation, but also to show whether any loss that occurs takes place within the policy. It is im- portant therefore to know precisely when the insurance begins and when it ceases. By the words usually inserted, "lost or not lost," the insurers make themselves responsible although the property be at that time wholly lost, pro- vided the insured does not know it, or makes known all he knows about it. Insurance "at and from " a place begins when the property is therein a safe condition. Insurance "from" a place begins when the ship sails. English and American insurers now usually insert a clause in all voyage policies, that the insu- rance continues " until the ship be arrived and moored 24 hours in safetv." This means safe-