Delivery of the policy. allowed by this Act in the case of a policy made for a greater period than six months, and that the articles insured shall remain the property of the same person or persons, and that no additional or further sum shall be insured by reason or means of such alteration." A provision similar to this contained in an earlier Act has received a liberal construction (u). A mistake made in the ship's name might have been rectified (r); the time of sailing might have been altered or extended (y); and a change of destination might have been inserted, if made before notice of the determination of the risk (*). But where an insurance made upon "the ship and outfit" was afterwards altered by consent, by substituting the words "the ship and goods," it was held that a new stamp was necessary (a). Where, however, a policy was effected, by mistake, on the goods instead of on the ship, and the parties never intended to enter into the contract in its original form, it was held that an alteration making the terms of the contract agree with the real intention of the parties did not render a new stamp requisite (b). A policy cannot be altered so as to bring within a class requiring a higher duty (c). Where the alteration renders a new stamp necessary the parties cannot recover upon the policy in its original state; since the alteration, although ineffectual to form a new agreement, proves an intention to abandon the former contract (d). Where there is no complete delivery of a policy under seal to the assured, the insurers are not liable on it; but it is not necessary in order to make the delivery complete that the assured should formally accept or take away the policy. In fact, it is a common practice of insurance companies to retain the policy until sent for by the assured or his broker (e). (u) 35 Geo. 3, c. 63, s. 13. See Brockelbank v. Sugrue, 1 B. & Ad. 88. (x) Robinson v. Touray, 3 Camp. 158; 1 M. & S. 217; see Cole v. Parkin, 12 East, 471. (y) Kensington v. Inglis, 8 East, 273; (z) Ramstrom v. Bell, 5 M. & S. 267; (b) Sawtell v. Loudon, 5 Taunt. 399. S. C., 9 East, 351. (e) Xenos v. Wickham, 13 C. B., N.S. 381; S. C., in Cam. Scacc., 14 C. B., N. S. 435, and Dom. Proc., L. R., 2 H. L. 296. In this case the policy had been actually executed by the directors of the company, but had been retained by them in their possession, and there was a difference of opinion between the judges in the Exchequer Chamber, as to whether, looking at the course of business, the policy had, in fact, been delivered or not. The House of Lords held, that the policy was delivered so as to bind the defendant. tract A policy of insurance is considered as a contract uberrima Construction fidei, and always receives a liberal construction for the benefit of the conof trade, and for the assured (ƒ). The same rule of construction, applies, however, to it as to all other instruments, namely, that it is to be construed according to its sense and meaning, as collected in the first place from the terms used in it, which terms are themselves to be understood in their plain, ordinary and popular sense, unless they have generally in respect to the subject-matter, as by the known usage of trade, or the like, acquired a peculiar sense distinct from the popular sense of the same words; or unless the context evidently points out that they must in the particular instance, and in order to effectuate the immediate intentions of the parties to that contract, be understood in some other special and peculiar sense (g). Where, therefore, the policy is ambiguous in its terms, or contains nothing which expressly rebuts the construction, it will be understood as referring to what is usually done by such a ship, with such a cargo, on such a voyage (h); for it is presumed that every underwriter is acquainted with the practice of the trade in which he insures (i). Thus, evidence was held to be properly received of a custom that, under the usual form of policy, underwriters are not liable for general average in respect of the jettison of goods stowed on deck (k). evidence of usage. If the usage is general, the policy is governed by it, although Effect of the trade which it affects is of recent origin (1). As, however, evidence of usage is admissible only upon the ground that the parties contracting are presumed to have been aware of its (f) 2 W. Saund. 200, n. (1); and the judgment of Buller, J., in Wolff v. Horncastle, 1 B. & P. 322; Pearson v. The Commercial Union Insurance Company, 15 C. B., N. S. 304; 1 App. Cases, 498. (g) Per Lord Ellenborough in Roberts v. French, 4 East, 135; see also Trueman v. Loder, 11 A. & E. 589, and per Erle, C. J., in Carr v. Montefiore, 5 B. & S. 428. (h) See the judgment of Lord Mansfield in Pelly v. The Royal Exchange Assurance Company, 1 Burr. 350. In a recent case it was held, that the construction of a policy could not be varied by a correspondence between the assured and their agents who effected the insurance, which was not referred to in the policy, but of which the underwriters had notice; Halhead v. Young, 6 E. & B. 312. (i) See per Lord Mansfield in Noble v. Kennoway, 2 Doug. 512; see also Letheulier's Case, 2 Salk. 443; Salvador v. Hopkins, 3 Burr. 1707; Grant v. Paxton, 1 Taunt. 463; Robertson v. Clarke, 1 Bing. 445; Vallance v. Dewar, 1 Camp. 503, and the cases cited ib. 505, note; Chaurand v. Angerstein, Peake, 43; Gould v. Oliver, 4 Bing. N. C. 134; Milward v. Hibbert, 3 Q. B. 120; Lewis v. Marshall, 7 M. & Gr. 729; The Imperial Marine Insurance Company v. The Fire Insurance Corporation, 4 C. P. D. 166; and ante, p. 294. (k) Miller v. Tetherington, 6 H. & N. 278; S. C., in Cam. Scacc., 7 H. & N. 954. (1) Noble v. Kennoway, ubi supra. Parol evidence. Effect of superadded written words. existence, and consequently to have entered into the policy subject to its effect, the usage must be general, either to all trades, or to the particular trade in respect of which the insurance is made. An usage, therefore, at Lloyd's is not binding upon an assured when it is not known to him, although his broker may have been aware of it (m). If the terms of a policy are plain and unambiguous, evidence of an usage which would contradict instead of explaining them is inadmissible. Thus, where a policy on a ship was in the usual form, including "boats," evidence of an usage not to pay upon a loss of boats slung outside upon the quarters of the vessel was excluded (n). So, where a policy stated that the insurance on the ship should continue until she was moored twenty-four hours, and on the goods till safely landed, it was held that evidence of an usage that the risk on the goods as well as on the ship expired in twenty-four hours was not admissible (0). Parol evidence may be resorted to for the purpose of explaining words which, being technical or local, have acquired a peculiar meaning; as, for instance, words relating to the articles of commerce which form the cargo (p), or the port (q), sea (r), or country to which the ship is bound ($). If, as is usually the case, part of the policy is printed and part written, it has been held that the words superadded in writing are entitled to have a greater weight attributed to them than the printed words; inasmuch as the written words are considered as more immediately the language of the parties (t). (m) Gabay v. Lloyd, 3 B. & C. 793; Bartlett v. Pentland, 10 B. & C. 760; Scott v. Irving, 1 B. & Ad. 605; Stewart v. Aberdein, 4 M. & W. 211; Mackintosh v. Marshall, 11 M. & W. 116; Partridge v. Bank of England, 9 Q. B. 396; the judgment of Parke, B., in Bayliffe v. Butterworth, 1 Ex. 428; and Sweeting v. Pearce, 7 C. B., N. S. 449; S. C., in Cam. Scacc., 9 C. B., N. S. 534. (n) Blackett v. The Royal Exchange Assurance Company, 2 C. & J. 244; Crofts v. Marshall, 7 C. & P. 597; see also Hall v. Janson, 4 E. & B. 500; Ross v. Thwaite, Backhouse v. Ripley, cited in Park on Insurance. (0) Parkinson v. Collier, Park on Insurance. (p) Scott v. Bourdillon, 2 N. R. 213; Mason v. Skurray, Park on Ins. 191. (q) Constable v. Noble, 2 Taunt. 403; Payne v. Hutchinson, ib. 405, note. (r) Brown v. Tayleur, 4 A. & E. 241; Uhde v. Walters, 3 Camp. 16. (s) Moxon v. Atkins, 3 Camp. 200; Robertson v. Clarke, 1 Bing. 445; see also Parr v. Anderson, 6 East, 207; Robertson v. Jackson, 2 C. B. 412. (t) See the judgment of Lord Ellenborough in Robertson v. French, 4 East, 136; also Alsager v. The St. Katharine Dock Company, 14 M. & W. 794. See also Gumm v. Tyrie, 4 B. & S. 680; S. C., Cam. Scacc., 6 B. & S. 298; Jessell v. Bath, L. R., 2 Ex. 267, decisions on bills of lading. Where a policy is set out upon the record, and comes in this form before the Court, no argument can be rested on this distinction, unless it is averred on the record that the difference exists. See the judgment of Parke, B., in Alsager v. The St. Katharine Dock Company, ubi supra. The printed words are not, however, to be rejected unless they are inconsistent with those in writing. Where the policy contained the usual clause in print that the ship was insured until she had been at anchor twenty-four hours in safety, and a written clause protected her for thirty days' stay, it was held that the latter should be computed from the expiration of the twenty-four hours (u). Thirdly, with respect to open, and valued policies, and voyage, time, and mixed policies. VALUED POLI CIES. A policy may be either open or ralued. In the former, the OPEN, AND value of the subject-matter of the insurance is not stated in the policy, and must be proved after a loss (x). In the latter, to prevent the necessity of proving the actual value in the event of a loss, a value agreed upon by the parties is mentioned in the policy, and is conclusive between them in case of loss (y). (u) Mercantile Marine Insurance Company v. Tetherington, 5 B. & S. 765; 34 L. J., Q. B. 11; see Lidgett v. Secretan, L. R., 5 C. P. 190. (x) Where, as it frequently happens, a shipowner is the proprietor of a line of vessels trading to and from particular ports, it is competent for him, in order that he may at no time be uninsured, to execute a series of running policies to attach as soon as each parcel of goods is shipped, and to succeed one another in order as the preceding ones become consumed. These policies are generally expressed to be 66 on goods by ship or ships as may be hereafter declared and valued." It is the duty of the assured to declare at the earliest opportunity to the underwriters the value of the shipments and the name of the vessel on which they are shipped. But the declaration is not a condition precedent, and if none is made the policy is then open instead of being valued. The shipments should be declared in the order of shipment. The assured is not allowed to declare some of the risks and remain his own insurer as to others. If by mistake, however, the shipment has been declared in a wrong order, the assured may correct the mistake even after loss. A declaration after loss has been held good where there was an absence of fraud, and the assured communicated with the underwriters at the earliest convenient opportunity. Gledstanes v. The Corporation of the Royal Exchange Assurance, 5 B. & (y) See the judgment of Lord Ellen- Amount recoverable in cases of total loss. A valued policy contains a clause to the following effect: "The Where the policy is valued, the insured, notwithstanding the 19 Geo. 2, c. 37 (a), is entitled to recover the whole valuation, although it exceeds his interest (b). If, however, it appears that the valuation has been adopted as a mere cover to a wager (c), or that the value has been fraudulently misrepresented (d), the policy is void, and the insurer cannot recover even to the extent of his actual interest. Another effect of a policy being valued is that, in cases of constructive total loss, the assured may obtain in some events more than a compensation for his actual loss (e). The general rule is, that where there are several insurances upon the same vessel, the valuation is conclusive only between the assured and the underwriters of that policy which contains the valuation. It is not enough for the underwriters on one of the other policies to show that the assured has received from another quarter the sum fixed by this valuation, unless this amounts to a real indemnity (f). Where, however, an owner effects two insurances, declaring the same value in each, he is bound by this sum, and cannot recover more on the two policies than the sum mentioned, although the real value of the vessel is more (g). And in a recent case it has been considered by the Court of Exchequer that where there are several valued writers, although they have paid the (z) Crauford v. Hunter, 8 T. R. 15, (a) Ante, p. 441. (b) Lewis v. Rucker, 2 Burr. 1167; Shawe v. Felton, 2 East, 114. (c) See per Lord Mansfield in Lewis v. Rucker, 2 Burr. 1171. (d) Haigh v. de la Cour, 3 Camp. 319. (e) Allen v. Sugrue, 8 B. & C. 561; Young v. Turing, 2 M. & G. 593; Manning v. Irving, 1 C. B. 168; S. C. in error, 2 C. B. 784; 6 C. B. 391; 1 H. L. Cas. 287. (f) Bousfield v. Barnes, 4 Camp. 228. (g) Irving v. Richardson, 1 M. & Rob. 153. |