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5. Re-assurance.

Re-assurance is a contract made by the first insurer or underwriter, with a view of securing himself from a risk, by throwing it on other underwriters, who are termed re-assurers. This is allowed in almost all the trading countries in Europe, and was permitted by the law of England, until the stat. 19 G. 2. c. 37., by the fourth section of which re-assurance is prohibited, except in three cases: 1. The insolvency; 2. The bankruptcy; 3. The death of the insurer; and even in these cases, it must be expressed in the policy to be a re-assurance, and the re-assurance must not exceed the amount of the sum before assured.

Although the first section of the above-mentioned statute does not extend to foreign ships, yet the fourth section does. Consequently a re-assurance, even by a foreigner, on a foreign ship, is illegal.

6. Wager Policy-Stat. 19 G. 2. c. 37.-Interest of Assured.

An insurance being a contract of indemnity, its object is not to make a positive gain, but to avert a possible loss. Hence, as a person cannot be said to be indemnified against a loss which can never happen to him, a policy without interest is not an insurance, but a mere wager only. Such policy, therefore, is properly denominated a wager policy.Although contradictory decisions are to be found in the books, as to the legality of wager policies, before the statute 19 G. 2, yet they have been recognised as legal contracts by modern judges; and it seems now to be admitted, that by the law of merchants, and particularly by the law of England, as it stood at the time of passing the act 19 G. 2., a wager policy, in which the parties, by express terms, such as the words" interest or no interest," or "without proof of interest," disclaimed the intention of making a contract of indemnity, was then (contrary to older determinations,) deemed a valid contract of insurance; but that a policy containing no such clause, disclaiming or dispensing with the proof of

e Andrée v. Fletcher, 2 T. R. 161.

f See the opinion of Chambre, J. in Lucena v. Crawfurd, 3 Bos. and Pul. 101.

interest, was to be considered as a contract of indemnity only, upon which the assured could never recover without proof of an interest (52.) But it having been found by experience, that the making assurances, 66 interest, or no interest, or without further proof of interest than the policy," had been productive of many pernicious practices, and by introducing a mischievous kind of gaming or wagering, under the pretence of assuring the risk on shipping and fair trade, the institution and laudable design of making assurances had been perverted; and that which was intended for the encouragement of trade and navigation, had, in many instances, become destructive to the same: it was enacted, by stat. 19 G. 2. c. 37. s. 1, "that no assurances should be made by any persons, bodies corporate or politic, on any ships belonging to his majesty, or any of his subjects (53), on any goods laden, or to be laden, on board such ships, interest or no interest, or without further proof of interest than the policy, or by way of gaming or wagering, or without benefit of salvage to the assurer, and that such assurances should be void." But by s. 2. it is provided, "That insurances on private ships of war, fitted out by any of his majesty's subjects, solely to cruise against his enemies, may be made by or for the owners thereof, interest or no interest, free of average, and without benefit of salvage to the insurer." And by s. 3. it is also provided, "That any effects, from any port or places in Europe or America, in possession of the crowns of Spain and Portugal, may be insured in the same manner as if this act had not been made." Having detailed the provisions of the

(52) This opinion of Chambre, J. is confirmed by an observation of Lord Hardwicke, in a case which was decided before the passing of the stat. 19 G. 2. c. 37. Speaking of the difference between insurances from fire and marine insurances, he says, "in the insurance of ships, interest or no interest' is almost constantly inserted, and, if not inserted, you cannot recover, unless you prove a property. Per Lord Hardwicke, C. in the Sadlers' Company v. Badcock, 2 Atk. 556.

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(53) In consequence of these words it has been holden, that this section does not apply to the case of foreign ships, and that insurances, interest or no interest," may be made upon them. Thellusson v. Fletcher, Doug. 315. And although the words "interest or no interest" are omitted in the policy on a foreign ship, yet in declaring on such policy, it is not necessary to aver that the assured had an interest. Craufurd v. Hunter, 8 T. R. 13. Nantes v. Thompson, 2 East, 385.

stat. 19 G. 2. c. 37., it will be necessary briefly to consider what that interest is, the protection of which is the proper object of a policy of assurance. And this is to be collected from considering what is the nature of such contracts. Now insurance is a contract by which the one party, in consideration of a price paid to him adequate to the risk, becomes security to the other, that he shall not suffer loss or damage by the happening of the perils specified to certain things, which may be exposed to them. This being the general nature of the contract, it follows, that it is applicable to protect persons against uncertain events, which may in anywise be of disadvantage to them; not only those persons, to whom positive loss may arise by such events occasioning the deprivation of that which they may possess, but those also, who, in consequence of such events, may have intercepted from them the advantage or profit which, but for such events, they would acquire according to the ordinary and probable course of things. That a person must somehow or other be interested in the preservation of the subject-matter exposed to perils, follows, from the nature of this contract, when not used as a mode of wager, but as applicable to the purposes for which it was originally introduced; but to confine it to the protection of the interest which arises out of property, is adding a restriction to the contract which does not arise out of its nature. Interest, therefore, with reference to the subject under consideration, does not necessarily imply a right to the whole, or a part of a thing, nor necessarily and exclusively that which may be the subject of privation, but the having some relation to, or concern in, the subject of the insurance, which relation or concern, by the happening of the perils insured against, may be so affected as to produce a damage to the person insuring; and where a person is so circumstanced, with respect to matters exposed to certain risks, as to have a moral certainty of advantage but for those risks, he may be said to be interested in the safety of the thing. Having endeavoured to explain the nature of an insurable interest, it will be proper to add, that it is not necessary such interest should be indefeasible; for the consignee of goods under a bill of lading, has an insurable interest in such goods, although they may be stopped in tranšitu on their passage home. So also has an executor before probate. In like manner it

628.

g Per Lawrence J. in Lucena v. Crau- h Per Lord Ellenborough, C. J. 11 East ford, D. P. 2 Bos. and Pul. N. R. 300. where this subject is very elaborately discussed.

has been holden, that where a ship was taken as prize by the conjoint forces of the army and navy, the captors, before condemnation, had an insurable interest under stat. 45 G. 3. c. 72. s. 3. whereby the crown gave up its right in the prize to the captors, although such interest was defeasible, as well by the release of the crown, as the adjudication of the court of admiraltyh. The owner of a ship, who has chartered her for a particular voyage, has an insurable interest in the ship during that voyage, although the charter-party contain a stipulation, that, in case the ship be lost, the charterer shall pay the owner the estimated value of the ship'.

X. Evidence-Damages.

In order to support his action, the plaintiff must be prepared with the following proof; 1. The policy must be produced in evidence, and the subscription of the defendant must be proved. 2. Evidence must be given of the interest of the insured in the subject matter of the insurance (54) at the time of the lossk. In insurances upon ships, the mere fact of the possession of the assured, as owners, is sufficient prima facie evidence of ownership', without the aid of any documentary proof or title deeds on the subject, such as the bill of sale or ship's register, unless such further evidence is rendered necessary in support of the prima facie evidence of

h Stirling v. Vaughan, 11 East, 619. 2 Campb. 225. S. C. cited in Robertson and others v. Hamilton, B. R. M. 52 G. 3.

i Hobbs v. Hannam, 3 Campb. 93.

k Clay v. Harrison, 10 B. & C. 106.
1 Robertson v. French, 4 East, 136.
See also Thomas v. Foyle, 5 Esp.
N. P. C. 88.

(54) In Amery v. Rogers, 1 Esp. N. P. C. 207, where an action was brought on a policy of insurance on a ship, Lord Kenyon, C. J. was of opinion, that the proof of the assured having exercised acts of ownership, in directing the loading, &c. of the ship, and paying the people employed, was sufficient proof of interest. And in M'Andrew v. Bell, 1 Esp. N. P. C. 373, where the insurance was on a ship and her cargo, the plaintiff, in order to prove interest, produced the bill of lading, and the captain proved that it was his bill of lading, and that he had the goods specified in it on board. Lord Kenyon, C. J. held that the interest was sufficiently proved.

ownership, in consequence of the adduction of some contrary proof on the other side. As in an action on a policy of insurance on freight, where the interest in a ship and its earnings were alleged to be in four persons, who were partners in trade, and it was proved by the plaintiffs, that the ship had been paid for by all the four partners; but the defendant having produced the register, wherein the ship was registered in the names of two of the partners only; it was holdenm, that as the title to freight arose only from ownership, and the register was conclusive evidence that only two were owners, and as there was not any count in the declaration, stating the interest to be in two only, the plaintiffs could not recover. Where the plaintiff's declared on a policy of assurance", and averred that they were the persons residing in Great Britain who received the order for and effected the insurance; this was considered as a material averment, and not sustained by evidence of a letter received by them after the policy was effected, directing to make assurance; although the policy was originally on goods on board the ship called The Ann, or ships, or by whatsoever other name the ship should be named; and the plaintiffs, upon the receipt of the letter, procured a memorandum to be made on the policy, signed by the defendant, declaring the interest to be on board the Herald, the ship mentioned in the letter. In insurances upon goods, the mere production of a bill of parcels from the seller abroad, with the receipt to it, and proof of his hand-writing, has been holden° to be sufficient proof of the interest of the assured. In a declaration on a policy of insurance effected by the plaintiff, as agent of A. and B., it was averred, "that A. and B. at the time of effecting the policy, and thence until the time of the loss, were interested in the goods insured, to a large amount, to wit, to the amount of all the money ever insured thereon." At the trial it appeared, that, at the time when the policy was effected, another person was jointly interested in the goods, together with A. and B. The court were of opinion, that although A. and B. had not an exclusive interest, yet they had such an interest as would answer the terms of the averment; Chambre, J. observing, that the averment in substance was nothing more than that the parties for whose benefit the assurance was made, had an interest in the subject of that insurance. They

m Camden v. Anderson, 5 T. R. 709. recognized by Le Blanc, J. in Marsh v. Robinson, B. R. London Sittings, after H. T. 42 G. 3. 4 Esp. N. P. C. 98.

n Bell v. Janson, 1 M. and S. 201.

o Russel v. Boehm, Str. 1127. per Lee, C. J.

p Page v. Fry, 2 Bos. and Pul. 240. But see Bell v. Ansley, 16 East, 141. recognized in Cohen v. Hannam, 5 Taunt. 108.

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