Nos. 68-70.-Lewis v. Rucker; Irving v. Manning; Rucker v. Janson. - -Notes.

tained by Alsop v. Com. Ins. Co., 1 Sumner (U. S. Circ. Ct.), 451, where STORY, J., said: "I do not know that any overvaluation, however great, if it steers wide of a wager and a fraud, can be otherwise impeached." Robinson v. Manuf. Ins. Co., 1 Metcalf (Mass.), 143; Kane v. Com. Ins. Co., 8 Johnson (N. Y.), 229 ("well settled that the valuation in a policy is conclusive upon the underwriters, when there is no suggestion of fraud or imposition "); Whitney v. Am. Ins. Co., 3 Cowen (N. Y.), 210; Pleasants v. Maryland Ins. Co., 8 Cranch (U. S. Sup. Ct.), 53; Cushman v. Northw. Ins. Co., 34 Maine, 487; Boardman v. Boston M. Ins. Co., 146 Massachusetts, 442; Lockwood v. Sangamo Ins. Co., 46 Missouri, 71; Dumas v. U. S. Ins. Co., 12 Sergeant & Rawle (Penn.), 437.

In respect to constructive total loss, it has been held here that the actual and not the stated value is to govern. Bradlie v. Maryland Ins. Co., 12 Peters (U. S. Sup. Ct.), 398, 399, where STORY, J., observed: "In respect to the mode of ascertaining the value of the ship, and of course, whether she is injured to the amount of half her value, it has, upon the fullest consideration, been held by this Court that the true basis of the valuation is the value of the ship at the time of the disaster; and that if after the damage is or might be repaired the ship is not, or would not be worth, at the place of the repairs, double the cost of the repairs, it is to be treated as a technical total loss. This was the doctrine asserted in the Patapsco Ins. Co. v. Southgate, 5 Peters, 604, in which the Court below had instructed the jury, that if the vessel could not have been repaired without an expenditure exceeding half her value at the port of the repairs, after the repairs were made, it constituted a total loss. This Court held that instruction to be entirely correct. It follows, from this doctrine, that the valuation of the vessel in the policy, or the value at the home port, or in the general market of other ports, constitutes no ingredient in ascertaining whether the injury by the disaster is more than one-half the value of the vessel, or not." Followed in Fulton Ins. Co. v. Goodman, 32 Alabama, 108; Peele v. Merch. Ins. Co., 3 Mason (U. S. Circ. Ct.), 27, by STORY, J.

The contrary was preferred in American Ins. Co. v. Ogden, 20 Wendell (N. Y.), 287, by the Chancellor, but it did not necessarily enter into the decision. He quoted largely from Deblois v. Ocean Ins. Co., 16 Pickering (Mass.), 312, and declared "I most fully concur."

The early rule in Massachusetts was also to the contrary, and the value stated in the policy was held to govern. Deblois v. Ocean Ins. Co., 16 Pickering, 303; Orrok v. Com. Ins. Co., 21 ibid. 456; Allen v. Com. Ins. Co.,

1 Gray, 154; Heebner v. Eagle Ins. Co., 10 Gray, 131. But in Boardman v. Boston Ins. Co., supra, it was held that in respect to valued freight the actual value is to control. HOLMES, J., said: "If therefore we are to follow the rule which has been applied in this Commonwealth for the purpose of determining whether there is a constructive total loss of a ship under a valued policy, there has been no constructive total loss of freight, and there could not be so long as a single ton remained which could be forwarded for less than about seven hundred and thirty-two dollars, or half the valued freight less the actual freight supposed to be lost. We have no disposition

No. 71. Harman v. Kingston, 3 Camp. 150. — Rule.

to depart from the rule so far as it is settled, but in the existing state of the decisions elsewhere it should not be extended. Bradlie v. Maryland Ins. Co., 12 Pet. 378, 398, 399; Irving v. Manning, 1 H. L. Cas. 287, 306; Stewart v. Greenock Ins. Co., 6 Ct. of Sess. Cas. (2nd series) 359; Phillips Ins., § 15, 39 n. It is to be noticed further, that the reasons offered in Deblois v. Ocean Ins. Co., 16 Pick. 303, 312, other than that abandonments for technical total losses are not to be favored, have no application here. The actual value of the vessel will fluctuate, according to the time when and place where the loss occurs. Furthermore, it is a matter of estimate, on which opinions may differ widely. It may well be said that such estimates are excluded by the agreement of the parties, and that as the only way of ascertaining whether the loss is more than half is by comparing the cost of repairs with some valuation, the valuation in the policy must be accepted. But in the case at bar there is no element of fluctuation or of valuation. If the freight of a whole homogeneous cargo is conclusively presumed to be worth the valuation in the policy, there seems to be no reason why the freight of onehalf of it should not be presumed to be worth one-half of that valuation.”

No. 71. HARMAN v. KINGSTON.

(1811.)

No. 72.-GLEDSTANES v. ROYAL EXCHANGE ASSURANCE CORPORATION.

(1864.)

RULE.

WHERE goods are insured on ship or ships as may be declared, the declaration may be made after announcement of a loss, if there is interest in goods on board intended to be covered.

But if the insurance is on goods to be declared and valued, and the value is not declared until after the loss, the policy will be regarded as an open policy.

[150]

Harman and others v. Kingston.

3 Camp. 150-154 (13 R. R. 775).

Insurance. - Goods to be declared and valued.

Where there is a policy on goods as may be thereafter declared and valued, the declaration of interest, to be available, must be communicated

to the underwriters, or some one on their behalf, before intelligence is received of the loss. But the declaration of interest is not a condition precedent; and if none is made, the policy is then open instead of being valued; and upon proof of interest at the trial, the assured will be entitled to recover.

This was an action on a policy of insurance, dated 1st August, 1810, on goods by the ship Maria, “at and from Gottenburgh to port or ports of discharge in the Baltic." By a memorandum at the foot of the policy the insurance was declared to be "on sugar and cotton, as might be thereafter declared and valued."

The declaration alleged that the goods were duly declared and valued before the loss.

A clerk of the plaintiffs stated that on the 2nd of October, 1810, he wrote out and signed, by order of the assured, a specification of interest, with a valuation of the goods insured, on a separate piece of paper, which he wafered to the policy; but he could not swear that he had shown it to any of the underwriters, or to any other person, till after intelligence of the loss had been received.

The Attorney-General objected that this private memorandum of the clerk, which he had kept a secret from all the world, could not be considered a declaration of interest within the meaning of the policy. The object was to inform the underwriters, before a loss happened, of the particular goods insured, and of the value put upon them, that they might be protected *from [* 151] any sinister practices on the part of the assured. But if this declaration were sufficient, it would be unnecessary to communicate any declaration till the day of trial, or there might be twenty declarations privately written and signed before the loss, and that one afterwards produced which, according to the event, would best suit the purpose of the parties.

Garrow and Bosanquet, contra, maintained that it was merely a question as to the credit of the witness. If he was believed, there had been a declaration made on the 2nd of October, and the loss did not happen till the 18th of November. The declaration of interest did not require the assent of the underwriters. This policy did not stipulate, as is sometimes done, that it should be authenticated by their initials. Had it been shown to them on the 2nd of October, they could not have objected to it; and therefore, if the witness spoke true, they were precisely in as good a situation as if, on that day, it had been shown to every one of them. Henchman v. Offley, 2 H. Bl. 345, in notis (3 R. R. 413), was cited as in point.

No. 72. - Gledstanes v. Royal Exchange Assurance Corporation, 34 L. J. Q. B. 30.

Lord ELLENBOROUGH. A declaration necessarily imports two parties, the person who makes it, and the person to whom it is made. How can I consider an uncommunicated instrument a declaration? Had it been communicated to any person, or if it had been written on the policy, so that the party could not recede, perhaps that would have been sufficient. I allow that a

declaration of interest is no contract, and does not require [* 152] the assent of the underwriters; but it must * be communi

cated in such a manner that the assured cannot recede from it. Here there would have been no evidence that this instrument ever existed, if it had suited the assured to destroy it, or to substitute another in its place.

Garrow then proposed to prove the loading of the goods, and their value, as in the common case of an open policy.

Lord ELLENBOROUGH at first entertained some doubts whether this could be done; and whether, upon a policy of this sort, the declaration of interest is not a condition precedent, which must be fulfilled by the assured before the liability of the underwriters attaches: but, after further consideration, his Lordship said, I have now fully made up my mind that where there is an insurance on goods, as may be thereafter declared and valued, this gives the assured a power, by duly declaring and valuing before the loss, to make it a valued policy; but that if the assured do not so declare and value, it is then an open policy, and the interest is matter of evidence at the trial.

The Attorney-General. - My Lord, I feel myself bound entirely to subscribe to that doctrine; and had I been aware that the plaintiffs could prove the interest, I should not have made any objection. . .

Gledstanes v. Royal Exchange Assurance Corporation.

34 L. J. Q. B. 30-37 (s. c. 5 B. & S. 797; 11 L. T. 305; 13 W. R. 71; 11 Jur. (N. S.) 108).

[30]

Insurance. - Declaration of Risk.

Knowledge of Loss.

The plaintiffs were the London agents of an insurance company having an agent also in Calcutta: the defendants were a London insurance company. By a course of dealing between the plaintiffs' company and the defendants, an open policy was from time to time effected by the plaintiffs with the defendants, "lost or not lost, from Calcutta to the United Kingdom, on goods, to cover the excess over £5000 which might be taken by the Calcutta agent of the plaintiffs' company in any one ship, on first-class ship or ships as may be

No. 72. Gledstanes v. Royal Exchange Assurance Corporation, 34 L. J. Q. B. 30, 31.

declared." As soon as the Calcutta agent had ascertained that there was an excess of £5000 in any one ship on a policy granted by the plaintiffs' company, he wrote to the plaintiffs to appropriate such excess to the [*31] current open policy effected with the defendants; and the plaintiffs, as soon as the letter reached London, declared to the defendants the name of the ship and the amount of excess, which were indorsed on the back of the policy. On the 15th of February, 1860, the Calcutta agent wrote to the plaintiffs notifying an excess in the ship R. G. On the 16th of March, 1860, a telegram was made known to the plaintiffs and the defeudants, "Calcutta, March 10, ship R. G. burnt, some cargo will be saved." On the 17th of March the plaintiffs appropriated the whole of the amount remaining on the then current policy of the defendants to other ships. On the 19th of March a policy in the usual terms, which was expressed "to succeed" the last current policy, was effected by the plaintiffs with the defendants. On the 21st of March the plaintiffs in due course received the letter from Calcutta of the 15th of February, and immediately notified to the defendants that the excess of £5000 on the R. G. would be appropriated to the policy of the 19th of March; and on the 26th of March, on receiving the full particulars from Calcutta, they indorsed the amount of excess on the policy, which the defendants disputed their right to do. Held, that the plaintiffs could recover the excess in the R. G. on the policy of the 19th of March, as the appropriation and declaration were sufficient; and that the fact of the loss of the R. G. being known to both parties at the time the policy was granted did not affect it, as it was not then known to the plaintiffs or the defendants that the plaintiffs' company had any excess of insurance on board.

Case stated by consent, without pleadings.

This was an action brought to recover £2715, as the amount of a partial loss alleged to have attached, under one or other of certain open policies, effected by the plaintiffs with the defendants, on goods insured in the sum of £7699 11s. 3d., whereof £4738 was declared on the policies hereinafter mentioned, by ship or ships, in respect of the cargo of the ship Red Gauntlet, which was totally lost by fire at Calcutta under the circumstances hereinafter set forth.

The plaintiffs are merchants in London, and act as the agents there of the Hong-Kong Insurance Company. This company is established at Hong-Kong, and carries on the business of marine insurance there and elsewhere, and they have an agent established at Calcutta with general authority to underwrite policies on their behalf.

The course of business of the company in taking risks at Calcutta, so far as it is material to the question that arises on this case, is as follows: Merchants at Calcutta intending to make consignments of merchandise, for example, to the United Kingdom,