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(4) That the company shall have free access at all reasonable hours to the books, accounts, instructions, and correspondence relating to shipments and receipts covered by the policy. 7. Statement of Acts which Render the Policy Void.—In addition to the general principle already noted, that the misrepresentation or concealment of any material fact will nullify a policy, it is customary in most policies to declare the contract void for one or more of the following reasons: (1) “In case of any agreement or act, past or future, by the insured, whereby any right or recovery of the insured, against any persons or corporations, is released or lost, which would, on acceptance of abandonment or payment of loss by this company, belong to this company but for such agreement or act, or in case this insurance is made for the benefit of any carrier or bailee of the property insured, other than the person named as insured.” (2) In case the policy or the interest therein is sold, assigned, transferred, or pledged, without obtaining in writing the previous consent of the insurers. (3) If any claim for loss arising under the policy is not prosecuted within one year from the date of happening. (4) If a vessel upon a regular survey should be declared unseaworthy on account of being unsound. 8. Miscellaneous.-Under this head may be grouped the many scattered provisions, clauses, and warranties which are found in examining a large number of policies. To enumerate them all is quite impracticable, so an attempt will be made, therefore, merely to indicate their nature by giving the principal groups under which they may be classified. In the main these groups are seven in number, and include: (1) Those provisions which exempt the underwriter from loss arising from capture, seizure, detention, or other acts of force; or which protect the underwriter from loss on account of illicit trade, or trade in contraband of war, or which forbid abandonment except under certain specified conditions. (2) Those exempting the underwriter from the payment of certain losses and expenses, or from paying for certain repairs, such as the customary deduction of one third from the cost of all repairs on a vessel, except where otherwise provided, as a commutation for the average difference between new and old. (3) Those which forbid the insured to use certain ports, routes of travel, or areas of water, or else limit their use to certain months in the year. (4) Those which prohibit, restrict, or otherwise regulate the carrying of certain articles. (5) Those referring to the collection or return of the premium, such as the right to cancel a policy and collect the earned premium in case of the bankruptcy of the insured, or the right to retain the whole premium in case the voyage is terminated before the expiration of the policy. (6) Those arranging for payment of losses within thirty or sixty days, as the case may be, after receipt of the proof and adjustment of the loss, together with the proof of insurable interest, and after deducting all sums due to the company. (7) Those granting the shipmaster liberty of action in time of danger, such as proceeding to another port in case the port of destination is blockaded, or in case stress of weather or unavoidable accident makes this imperative.
SPECIAL AGREEMENTS INDORSED ON MARINE
Theee is an almost endless variety of clauses or riders attached to marine policies in order to express special agreements entered into by the contracting parties with a view to changing or supplementing the provisions contained in the printed form of the policy. These clauses are usually either printed, written, or stamped on the margin of the policy, and very frequently, to make their importance conspicuous, are introduced in red or blue print. But, whatever the form in which they may appear, or however contrary to the printed portion of the policy they may be, they are binding upon the parties to the contract, in view of the principle that any writing in the policy or any printed clause attached thereto is regarded as a special agreement, and as taking precedence over the printed matter in the main body of the policy itself. Owing to the exceedingly large number and variety of such clauses in use, it is next to impossible to attempt an enumeration of them. How large the number is may be judged from the fact that Mr. Douglas Owen, in his collection of them in his work on "Marine Insurance Notes and Clauses," required a volume of over two hundred and fifty pages. Despite their number, however, there are certain clauses of such frequent usp as to deserve special mention.
1. The Collision Clause.—This clause first came into general use after 1836, in ^ hich year it was decided by a British court that an und erwriter was not liable under the ordinary wording of the/ marine policy for damages caused by
the Insured vessel to another vessel through collision, even though the insured vessel was at fault. Hence, although the damage suffered by the insured vessel through collision is covered by a marine policy, it became necessary, in view of this decision, to make a separate contract whereby the underwriter would agree to assume liability for the damage caused to the other vessel. Accordingly it became common to insert a clause which made the insurer liable for all or a portion of the damage thus incurred, and to-day the use of the socalled “collision clause” has become well-nigh universal. Its general use and great importance will justify its reproduction here in the form in which, with few exceptions, it is found in American policies, viz.: “It is agreed that if the vessel hereby insured shall in consequence of collision with another vessel become liable to pay, and shall pay any sum or sums for damages resulting therefrom to said other vessel, her freight, or her cargo, in such cases this company will contribute toward the payment of three fourths of the total amount of said damages in proportion that the sum insured under this policy bears to the total valuation of the vessel as herein stated, provided that this company shall not in any event be held liable under this agreement for a greater sum than three fourths of the amount insured under this policy. “And it is also agreed that this company will bear a like proportionate share of the costs and expenses that may be incurred in contesting the liability resulting from said collision, provided the written consent of the company to such contest be first obtained. “But under no circumstances shall this company be held liable for any contribution in respect of any sum that the assured may be held liable to pay, by reason of loss of life, or personal injury to individuals from any cause whatsoever.”
2. The “Free from Particular Average Clause,” which signifies that the insurer is not liable for loss resulting from particular average. In most cases provision is made that the clause shall not apply “unless the vessel be stranded, sunk, burned, or in collision”; while some companies use the phrase, “unless caused by the perils enumerated.”
3. A clause exempting the underwriter from "loss on account of capture, seizure, detention, or destruction by or arising from hostile forces, civil commotions, riots, or by the acts of officers, or other persons acting in the name of belligerents, or in pursuing warlike operations, whether before or after a declaration of war.'' The risks growing out of war, as has been said, are "deemed greater than all the perils enumerated in the policy.''1 Thus by inserting the above clause the underwriter relieves himself from liability on account of a risk which in itself would require a very substantial increase in the premium charge.
4. Among the numerous other clauses in use which might be mentioned, are those which provide that all risks insured are to be considered as underdeck unless otherwise specified; which prohibit the insured from trading in certain places or from carrying certain commodities; which grant the vessel certain liberty of action in case of certain contingencies; or which relieve the company from being answerable for certain denned losses, or from damage arising in consequence of specified actions or events.
Very frequently special agreements in marine insurance are declared by the policy to be warranties. In no other form of insurance does the term "warranty" appear so often as in the marine policy. For this reason an explanation of the term is desirable, especially in view of the fact that its application in marine insurance is quite different from that in fire insurance.
The chief distinction between a "warranty" in a marineinsurance policy and a "representative" is found in the strictness with which they must be fulfilled. Compliance with both is necessary to maintain the validity of the con
1A. A. Raven, in "Yale Insurance Lectures," 1903-04, p. 193.
WAEEANTIES AND REPRESENTATIONS