such matters of common knowledge as this need not be expressly stated.

In Buck v. Chesapeake Ins. Co., which was a policy "for whom it might concern," the court held that it was not incumbent upon the party taking out the insurance to state who were interested in it, unless the question was asked, but the questions asked must be answered truthfully.

SUN MUT. INS. CO. v. OCEAN INS. CO.** was a case where a company which had insured a vessel on certain voyages reinsured the risk in another company. They failed to state, in the information which they gave the second company, the existence of an important charter, of which they knew, and of which the second company did not know. The policy was held void. The court said: "It thus appears that at the time of the loss Melcher had insurance on two concurrent charters and his primage thereon during one voyage, being insured, besides his interest in the ship, on double the amount of its possible earnings of freight for one voyage. This fact was known to the Ocean Company at the time, and was not communicated by it to the Sun Company, which was without other knowledge upon the subject, and executed its policy to the Ocean Company in ignorance of it.

"That knowledge of the circumstance was material and important to the underwriter, as likely to influence his judgment in accepting the risk, we think is so manifest to common reason as to need no proof of usage or opinion among those engaged in the business. It was a. flagrant case of overinsurance upon its face, and made it the pecuniary interest of the master in charge of the ship to forego and neglect the duty which he owed to all interested in her safety. Had it been known, it is reasonable to believe that a prudent underwriter would not have accepted the proposal as made, and, where the fact of the contract is in

441 Pet. 151, 7 L. Ed. 90.

45 107 U. S. 485, 1 Sup. Ct. 582, 27 L. Ed. 337.

dispute, as here, it corroborates the denial of the appellants. The concealment, whether intentional or inadvertent, we have no hesitation in saying, avoids the policy, if actually intended to cover the risk for which the claim is made.

"In respect to the duty of disclosing all material facts, the case of reinsurance does not differ from that of an original insurance. The obligation in both cases is one uberrimæ fidei. The duty of communication, indeed, is independent of the intention and is violated by the fact of concealment, even where there is no design to deceive. The exaction of information in some instances may be greater in a case of reinsurance than as between the parties to an original insurance. In the former, the party seeking to shift the risk he has taken is bound to communicate his knowledge of the character of the original insured, where such information would be likely to influence the judgment of an underwriter; while in the latter the party, in the language of Bronson, J., in the case of New York Bowery Fire Ins. Co. v. Insurance Co., 17 Wend. (N. Y.) 359, 367, is 'not bound, nor could it be expected that he should speak evil of himself."

"Mr. Duer (2 Ins. 398, Lect. 13, pt. 1, § 13) states as a part of the rule the following proposition:

"Sec. 13. The assured will not be allowed to protect himself against the charge of an undue concealment by evidence that he had disclosed to the underwriters, in general terms, the information that he possessed. Where his own information is specific, it must be communicated in the terms in which it was received. General terms may include the truth, but may fail to convey it with its proper force, and in all its extent. Nor will the assured be permitted to urge, as an excuse for his omission to communicate material facts, that they were actually known to the underwriters, unless it appears that their knowledge was as particular and full as his own information. It is the

duty of the assured to place the underwriter in the same situation as himself; to give to him the same means and opportunity of judging of the value of the risks; and, when any circumstance is withheld, however slight and immaterial it may have seemed to himself, that, if disclosed, would probably have influenced the terms of the insurance, the concealment vitiates the policy.''

9 46

If the insurance is placed through a distant agent ignorant of a material fact which is known to the principal, it is the duty of the latter to communicate it to the agent if possible; and his failure to do so would avoid the policy.""

In England it is the practice to have a preliminary binder before the issuing of the main policy, and the initialing of this by the parties is treated by them as morally binding, although unenforceable as a contract for want of a stamp.

In Cory v. Patton,18 after this preliminary contract was made, but before the policy was issued, certain material facts came to the knowledge of the agent of the insured; the fact so coming to his knowledge being the very material one that the ship had been lost. The court held, however, that it was not incumbent upon the insured to communicate this fact, though the preliminary contract was not binding, and the policy had not been issued, because he had given all the material facts up to the time of the preliminary contract, and they would not tempt the un

46 See, also, Northwestern S. S. Co. v. Maritime Ins. Co. (C. C.) 161 Fed. 166. Granger v. Providence Washington Ins. Co., 200 Fed. 730, 119 C. C. A. 174. The English Marine Insurance Act, 1906, is an accurate summary of the law as to disclosure and representations. See sections 17-20. See Gow, Mar. Ins. p. 392, and Winter, Mar. Ins. p. 387, for the full text of this act.

47 McLanahan v. Universal Ins. Co., 1 Pet. 171, 7 L. Ed. 98; Kerr v. Union Marine Ins. Co., 130 Fed. 415, 64 C. C. A. 617.

48 L R. 9 Q. B. 577. Merchants' Mut. Ins. Co. v. Lyman, 15 Wall. 664, 21 L. Ed. 246, can hardly be considered in conflict with this.

derwriter to repudiate an obligation treated as a moral one by those in the business.

A leading case on this general subject is IONIDES v. PENDER. There the assured greatly overvalued the goods without disclosing the real valuation to the underwriter, and it was shown that the question of valuation is, among underwriters, a very material consideration. The court held that this misrepresentation vitiated the policy.

The general doctrine that a warranty, even of an immaterial matter, if broken, avoids the policy, is well settled."

SAME SEAWORTHINESS

27. It is an implied condition of marine insurance on vessel, cargo, or freight that the vessel shall be seaworthy, which means that she must be sufficiently tight, stanch, and strong to resist the ordinary attacks of wind and sea during the voyage for which she is insured, and that she must be properly manned and equipped for the voyage.

The Marine Insurance Act, 1906, expresses this pithily as follows:·

"A ship is deemed to be seaworthy when she is reasonably fit in all respects to encounter the ordinary perils of the seas of the adventure insured." 51

Seaworthiness is, necessarily, a variable term. A vessel which is seaworthy for river navigation may not be for bay navigation, and a vessel which is seaworthy for bay navigation may not be for ocean navigation. Hence the seaworthiness implied means seaworthiness for the voyage insured. It applies not only to the hull of the vessel, but to

49 L. R. 9 Q. B. 531.

501 Pars. Ins. 337; Snyder v. Home Ins. Co. (D. C.) 133 Fed. 848; Id., 148 Fed. 1021, 79 C. C. A. 536.

§ 27. 51 Section 39, cl. (4).

her outfit, including her crew. She must be properly fitted out for the voyage which she is to undertake, and she must have a sufficient and competent crew.

In Pope v. Swiss Lloyd Ins. Co., it was held that a vessel with insufficient ground tackle to hold her against ordinary incidents of navigation, including ordinarily heavy weather, was not seaworthy.

In RICHELIEU & O. NAV. CO. v. BOSTON MARINE INS. CO.,53 it was held that a vessel whose compass was defective, though not known to be so, was unseaworthy; for it is implied not merely that the vessel owner will use ordinary care to keep his vessel seaworthy, but that she actually is seaworthy.

In the case of steamers, seaworthiness implies sufficient fuel for the voyage.

54

In the Niagara55 (which was a suit by a shipper, not an insurance case, but which applies on this point) the court says: "A carrier's first duty, and one that is implied by law, when he is engaged in transporting goods by water, is to provide a seaworthy vessel, tight and stanch, and well furnished with suitable tackle, sails, or motive power, as the case may be, and furniture necessary for the voyage. She must also be provided with a crew, adequate in number, and sufficient and competent for the voyage, with refer

52 (D. C.) 4 Fed. 153.

53 136 U. S. 408, 10 Sup. Ct. 934, 34 L. Ed. 398.

54 McIver v. Tate Steamers, Ltd., [1903] 1 K. B. 362; Greenock S. S. Co. v. Maritime Ins. Co., [1903] 1 K. B. 367; [1903] 2 K. B. 657. But fodder for a cargo of cattle is not an appurtenance of the vessel, so as to render her unseaworthy, if not fit for the cattle. Of course such unfitness may be a violation of some special agreement. Tweedie Trading Co. v. Western Assur. Co., 179 Fed. 103, 102 C. C. A. 397.

55 21 How. 7, 16 L. Ed. 41. See, also, Whealton Packing Co. v. Etna Ins. Co., 185 Fed. 108, 107 C. C. A. 113, 34 L. R. A. (N. S.) 563; Forshaw v. Chabut, 3 Br. & B. 158 (7 E. C. L.); Clifford v. Hunter, 3 C. & P. 16 (14 E. C. L.).