INSURANCE. 



a cause unconnected with the fact 

 misrepresented. So if it be made with- 

 out knowing whether it be true or false, 

 or even if the person making it believe 

 it to be true ; but if he only give it as 

 his belief, without knowing the contrary, 

 it will not affect the contract. Conceal- 

 ment consists in a fraudulent suppression 

 of any fact or circumstance material to 

 the risk. This, like every other fraud, 

 avoids the contract ab initio, upon princi- 

 ples of natural justice. But it is not 

 merely on the ground of fraud that a con- 

 cealment avoids the contract; even an 

 innocent concealment of material facts 

 will avoid the policy. 



Sea-worthiness. In every insurance, 

 whether of ship or goods, there is an im- 

 plied warranty of the sea-worthiness of 

 the ship, that is to say, that she shall be 

 tight, staunch, and strong, properly 

 manned, and provided with all necessary 

 stores, and in every other respect fit for 

 the voyage. 



Deviation, is a voluntary departure, 

 without reasonable cause, from the regu- 

 lar course of the voyage insured. From 

 the moment this happens the contract 

 becomes void. The course ofthe voyage 

 does not mean the nearest possible way, 

 but the usual and regular course. Ac- 

 cordingly, stopping at certain places on 

 the voyage is no deviation, if it be cus- 

 tomary so to do ; but such usage can 

 only be supported by long and regular 

 practice. 



Loss, is either total or partial. The 

 term total loss means not only the total 

 destruction of, but also such damage to 

 the thing insured, as renders it of little 

 or no value to the insured, although it 

 may specifically remain. Thus, a loss is 

 said to be total, if, in consequence ofthe 

 misfortune that has happened, the voyage 

 be lost or not worth pursuing, and the 

 projected adventure frustrated; or if the 

 value of what is saved be less than the 

 freight, 8cc. A partial loss is any thing 

 short of a to*talloss; such losses are some- 

 times styled average losses. Losses by 

 perils ofthe sea are generally understood 

 to be such accidents or misfortunes as 

 proceed from sea damage ; that is to say, 

 such as arise from stress of weather, 

 winds, waves, lightning, tempests, rocks, 

 sands, &c. 



If a ship be not heard of for a reason- 

 able time, she shall be presumed to have 

 foundered at sea, and the insured has a 

 right to recover, as such, from the un- 

 derwriter. A loss by fire, which is merely 

 accidental, and not , imputable to the 

 master or mariners, is undoubtedly within 



VOL. VI. 



the policy. If a ship be burnt by orter 

 of the state where she happens to be, to 

 prevent infection, this also has been held 

 a loss within the policy. 



If a ship be attacked by an enemy, and 

 the captain, unable to defend her, leave 

 and set fire to her, to prevent her from 

 falling into the enemy's hands, the insurer 

 is said to be liable. 



Capture is where a ship is taken by an 

 enemy in war, or by way of reprisals, or 

 by a pirate. Capture may be with an in- 

 tent to possess the ship and cargo, or 

 only to seize the goods on board as con- 

 traband; the former is a capture, the 

 latter only an arrest or detention. Every 

 capture, whether lawful or unlawful, is 

 within the policy ; provided the words of 

 the policy be sufficiently comprehensive. 

 Where the ship is re-captured before 

 abandonment, it is a partial loss ; and the 

 insurer is bound to pay the salvage, and 

 other necessary expenses the insured may 

 have incurred to recover his property. 

 In general, wherever a ship is taken by 

 the enemy, the insured may abandon, and 

 demand as for a total loss ; but he is not 

 bound to abandon; if he do, the insurer, 

 in case of re-capture, will stand in his 

 place, and is liable for all fair charges oc- 

 casioned by the capture. 



Loss by detention of princes, &c. There 

 is an obvious difference between this and 

 capture ; the object of the one is prize, 

 that ofthe other detention, with a design 

 to restore the ship or goods detained, or 

 pay the value to the owner: and though 

 neither of these should be done, sfill it 

 must be considered as the arrest of 

 princes, the character of any action de- 

 pending on the original design with 

 which it was done. An arrest of princes 

 may be at sea as well as in port, if it be 

 done from public necessity, and not with 

 a view to plunder. 



Loss by barratry. Barratry isany species 

 of fraud committed by the master or 

 mariners, whereby the owners sustain an 

 injury; as by running away with the ship, 

 wilfully carrying her out of her course, 

 sinking or deserting her, embezzling the 

 cargo, smuggling, or any other offence, 

 whereby the ship or cargo may be sub- 

 jected to arrest, detention, loss, or for- 

 feiture. No fault of the master or mari- 

 ners amounts to barratry, unless it pro- 

 ceed from an intention to defraud the 

 owners; therefore a deviation, if made 

 through ignorance, unskilfulness, or any 

 motive which is not fraudulent, although 

 it will avoid the policy, does not amount 

 to barratry. 



Loss by average contributions. The 



Pp 



