MARINE INSURANCE.

Jurisdiction. A fire was communicated by a steam vessel to buildings on shore. Held, that the admiralty court had not jurisdiction of a suit brought against the owners of the vessel for damages.

Limitation of liability--Statute.-The act of Congress,, March 3, 1851, entitled "An act to limit the liability of ship owners, and for other purposes," 9 Stat. 635; R. S. ?? 4,282 to 4,289, does not apply to damages done on land, but has reference only to maritime losses.

Goodrich Transportation Co. v. Gagnon et al. (U. S. C. C.), 17 Insurance Law Journal (October, '88), p. 742.

Application and Policy --Variance - Construction — Abandonment.-B. & Co. had the right to insure twenty shares of a ship, as owners and trustees. H. V., their agent, applied for the insurance under direction from B. & Co. He made application stating that the insurance was wanted by the plaintiffs on account of themselves, and signed it “B. & Co., per H. V." The policy was issued "on account of whom it may concern." The ship having been injured, the following notice was given: "I hereby abandon to you all my right, title and interest in the vessel insured by you under policy No. 6938, and hereby claim total loss thereon on behalf of Messrs. B. & Co., as their agent. H. V., agent for B. & Co." Held, (1) that the right of the parties must be governed by the policy as issued and not by the application, and, therefore, the interest in the whole twenty shares, which the plaintiffs had the right to insure, and intended to insure, was covered by the policy; (2) that the notice of abandonment was sufficient, and applied to the whole twenty shares.

Freight Earned after Damage.-The defendants, by the abandonment, would be entitled to receive a portion of the freight earned after the damage to the ship, if there had been evidence of the amount received by the plaintiffs.

Barss v. Merchants' Marine Ins. Co. (N. B. S. C.), 8 Canadian Law Journal (October, 1888), p. 353.

Action for Cancellation-Equity--Jurisdiction--Practice-Action to Perpetuate Testimony.-If a policy is liable to be completely avoided, as on the ground of fraud or misrepresentation, equity has jurisdiction to direct its delivery up and cancellation, but it has no

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jurisdiction to direct the cancellation of a policy to any claim on which there is a good defence, or to declare there is no liability upon it. If there is danger of the evidence for the defence being lost, the remedy is not an action for cancellation, but an action to perpetuate testimony.

Brooking v. Mandlay et al. (Eng. C. A.-Ch. Div.), 38 Law Reports (Sept. 1, 1888), p. 636.

Policy-Construction-"In Port."-A ship insured for a voyage to any port of discharge in the United Kingdom, "and whilst in port during thirty days after arrival," arrived at Greenock, discharged her cargo, and was placed in a dock for repairs. Within thirty days after her arrival she left the docks in ballast for the port of Glasgow, in tow of a steam-tug, to proceed on a new voyage, and had reached the fairway of the channel of the Clyde, her stern being about 500 feet distant from the harbor works, when she was capsized by a sudden gust of wind, and sustained damage. Held, affirming decision below, that the ship at the time of the accident was not "in port" within the meaning of the policy, and the underwriters were not liable.

Hunter et al. v. Northern Marine Ins. Co. et al. (Eng. H. of L.), Law Reports, 13 Appeal Cases (December 1, 1888), p. 717.

Contract-Specific Performance - Equity.- Plaintiff applied, through brokers, to defendant's agent, for insurance on a cargo then loading. The agent notified the plaintiff that the risk had been accepted, and ordered him to send his book by the brokers, and have the risk entered up. Plaintiff notified the brokers, but by mistake the risk was not entered, though all parties interested supposed that it had been until information was received of the loss of the cargo. The policy was what is known as an "open policy," with book attached, in which the details of the risk were entered at the convenience of the parties, and were often made after the voyage was terminated. Premiums were not required when the risk was effected, but were settled monthly. Held, that equity would enforce the entry of the risk and payment of the insurance, though the policy provided that no shipment was to be considered insured until approved and indorsed on the book by the agent.

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Same Evidence.- Parol evidence was admissible to show the method of dealing in respect to the risks entered in the open policy and book.

Phoenix Ins. Co. et al. v. Ryland et al. (Md. C. A.), 16 Atlantic Reporter (January 2, 1889), p. 109.

Total Loss-Sale-Authority of Master.-A vessel, laden with coal, valued at $9,000, struck on the beach on the west side of Block island, about ten o'clock at night, in a thick fog. She lay on a sandy beach with rocks under and around her, nearly on an even keel, and head on to the beach, but so that she was broadside to the sea. On the next morning the wind increased somewhat in violence, and as the tide arose

the vessel chafed heavily; and about 10 A. M. bilged and filled with water. The master applied to a wrecking company, who offered to get the vessel off for $5,000. The following day the owner's agent arrived. The weather had moderated somewhat. A survey was called, and four days later the vessel was sold for $610. The vessel was in an exposed condition, and local witnesses testified that a large proportion of coal vessels which are bilged on that part of the island become a total loss. Held, that the master was justified in making the sale, and the insurers liable for a total loss, though the vessel was afterward saved.

Hull v. Ocean Ins. Co. (U. S. C. C.), 37 Federal Reporter (March 12, 1889), p. 371.

Policy-Negligence.-Under a marine policy exempting the underwriter from liability for "all perils, losses, misfortunes, or expense consequent upon, or arising from, or caused by, *** the want of ordinary care and skill in navigating said vessel," the insured can not recover general average expenses incurred in rescuing the vessel from a peril brought about by negligence in her navigation.

Proximate Cause of Loss.-Where a vessel was negligently run ashore, and, a storm coming on, was voluntarily scuttled to save her from total loss, and other general average expenses were subsequently incurred, held, that the stranding, and not the storm, was the proximate cause of loss.

The Ontario (U. S. C. C.), 37 Federal Reporter (Feb. 26, 1889), p. 220.

Abandonment-Acceptance-Effect.—Where the insurer, upon notification of the abandonment of a vessel, gets it off, brings it to port, repairs it at great expense, and never offers to return it, believing the loss caused by a peril covered by the policy, the abandonment is thereby accepted, and the company can not defend on the ground that it is not liable, but must pay the full amount of the policy, as it should have in vestigated the cause of the loss before accepting the abandonment.

Notice of Abandonment-Telegram.-Under a clause in the policy requiring notice of the abandonment to be in writing, and sufficient, if accepted, to vest the title in the company, a telegram informing the company that the vessel was ashore at a given point, and that the insured abandoned it, and claimed a total loss, is sufficient, as no deed of abandonment is necessary to vest the title in the insurer under marine law.

Richelieu & O. Nav. Co. v. Thames & M. Ins. Co. (Mich. S. C.), 40 Northwestern Reporter (Jan. 5, 1889), p. 758.

Policy--Limitation of Action.—A condition in a marine policy that all claims under the policy should be void unless prosecuted within one year from the date of loss, is a valid condition and not contrary to Art. 2184, C. C., and all claims under such a policy will be barred if not sued on within the said time.

Allen v. Merchants' Marine Ins. Co. (Can. S. C.), 9 Canadian Law Times (Feb., 1889), p. 13.

Policy-Time of Sailing-Construction.--A policy on the hull of a vessel contained this warranty: "Warranted to sail not later than 3d December, 1882." And that on the freight the following: "Warranted to sail from Charlottetown not later than 3d December, 1882." The vessel left the wharf at Charlottetown on 3d December, but meeting with bad weather she came to anchor some two or three miles from the wharf, but within the harbor of the port, and proceeded on her voyage on the 4th December. Held, that there was a compliance with the warranty on the hull, but not with that on the freight.

Same--Limitation of Action.-The action was prescribed to twelve months from claim for loss or damage being deposited at the office of the insurers. The vessel being lost, a protest was deposited at the office of the insurers, which stated the voyage to have commenced at a date later than that warranted by the policy. Subsequently the master who had signed the protest deposited with the insurer a declaration stating that the vessel had sailed at a date within the policy, and that he had misstated the date in the protest through ignorance of the language of the country in which it was made. An action was brought on the policy within twelve months from the depositing of the amended statement, but more than twelve months from the serving of the protest. Held, that the protest was a claim for loss or damage within the meaning of the condition of the policy, and the action was too late.

Robertson v. Pugh (Can. S. C.), 9 Canadian Law Times (Feb., 1889),

p. 17.

Common Carrier-Recovery Against Wrong-Doer-Liability to Owner-Set-Off.-A common carrier who has brought suit against a wrong-doer to recover for the destruction of goods which had been entrusted to him for transportation, and has recovered for their amount, is liable to the owner of the goods for the sum recovered, and can not recoup against the claim the expenses incurred in the litigation with the wrong-doer.

Subrogation.-Plaintiff insured a cargo of lumber on a schooner, of which defendant was the managing owner. By a collision with a steamship, in which a court of admiralty, at the libel of defendant, decided both vessels in fault, the cargo was lost. The court also held that both parties were liable for the full value of the cargo, and that the steamship was liable to the schooner for one-half the damage done the latter. These sums were paid under order of court to defendant's proctor, who, after deducting his fees, paid the residue to defendant. Held, that plaintiff, who had succeeded to the rights of the owner, could recover the full amount paid to the proctor, without deduction of proctor's fees and expenses of litigation.

Hardman et al. v. Brett (U. S. C. C.), 37 Federal Reporter (April 30, 1889), p. 803.

Warranty-Cargo.-A policy upon a ship contained the clause, "Warranted no iron or ore, or phosphate cargo, exceeding the net registered tonnage." In an action on the policy, held, that the warranty was broken by shipping a quantity of steel in excess of the net registered tonnage.

Hart v. Standard Marine Ins. Co., Limited (Eng. C. A., Q. B. Div.), Law Reports-22 Queen's Bench Div. (April 1, 1889), p. 499.

Policy-Subrogation-Warranty.-Defendants, who had made advances to the owners of a vessel, and were entitled to commissions for procuring a charter, took out a policy with the plaintiff in the sum of $1,500, payable to defendants "on account of whom it may concern." Payment after the loss of the vessel was refused, except on the execution of indorsements by defendants to plaintiff of a master's draft for disbursements, and an assignment of $1,500 of defendant's claim against the owners for advances. Held, than an implied warranty arose that the claims were existing ones, to which the defendants had the title, and which they might transfer, and which at least had not been discharged by defendants' acts.

Same-Same. The policy contained a provision that in case of any act or agreement, past or future, whereby any right of recovery by the assured against third persons was lost, which would, on payment by the company, have belonged to it but for such agreement or act, the company would not be liable. Held, that as the arrangement between the defendants and the owners extinguished the company's right to subrogation, it also extinguished the company's liability, and that the payment by the company was a sufficient consideration for the assignment.

Phenix Ins. Co. v. Parsons et al. (N. Y. City S. C.), 4 New York Supplement (May 2, 1889), p. 621.

Policy" Perils of the Sea"-Barratry.--In a marine policy insuring against "perils of the sea," there was no mention of barratry. The vessel being lost, it was found, in an action on the policy, that such loss was occasioned by the barratrous act of the master in causing holes to be bored by which the vessel was sunk. Held, that this loss was not occasioned by "perils of the sea," and the fact of barratry not being expressly excepted in the policy would not entitle the insured to recover. (Strong, J., dissenting.)

O'Connor v. Merchants Marine Ins. Co. (Nova Scotia S. C.), 9 Canadian Law Times (May, 1889), p. 209.

Place of Contract-Law Applicable to.-Goods were shipped on a steamer performing regular service in the transportation of merchandise between New York and Liverpool. The steamer belonged to an English corporation. The bill of lading for the insured good's was made