per cent. for the risk from London to Portsmouth. It was held, that the plaintiff was entitled to recover such part of the premium as had been given for insuring the ship on the voyage from Portsmouth to Halifax; Denison, J., observing, that it was most equitable that the defendant should retain the premium for such part of the voyage only as he had run the risk of; that the insured had a right to have the other part restored to him. And this was agreeable to the general principle of actions for money had and received to the plaintiff's use; where the defendant had no right to retain it, he must refund it. Foster, J., added, that there was not any consideration for the remainder of the premium, i. e. for the voyage from Portsmouth to Halifax, wherein no risk was run by the insurer, who only insured the voyage with convoy; therefore he had no right to retain the premium for this. Wilmot, J., said, that upon this policy there were two distinct points of time, in effect two voyages, which were clearly in the contemplation of the parties, and only one of the two voyages was made, the other not at all entered upon. It was a conditional contract, and the second voyage was not begun, therefore the premium must be returned; for upon the second part of the voyage the risk never took place. Lord Mansfield, C. J., commenting on the preceding case in Tyrie v. Fletcher, Cowp. 669, observed, "that the first object of insurance was from London to Halifax; but if the ship did not depart from Portsmouth with convoy, then there was to be no contract from Portsmouth to Halifax: why then, the parties have said, 'We make a contract from London to Halifax, but, on a certain contingency, it shall only be a contract from London to Portsmouth.' That contingency not happening, reduced it in fact, to a contract from London to Portsmouth only." All the judges, in delivering their opinion, laid the stress upon the contract comprising two distinct conditions, and considering the voyage as being in fact two voyages. And in Bermon v. Woodbridge, Doug. 790, the same learned judge observed, that in Stevenson v. Snow, there was a contingency specified in the policy, upon the not happening of which the insurance would cease. It depended on the contingency of the ship sailing with convoy from Portsmouth whether there should be an insurance from that place. This necessarily divided the risk, and made two voyages. And in Loraine v. Thomlinson, Doug. 587, Lord Mansfield again remarked, that Stevenson v. Snow was decided on the ground of there being two voyages. The next case in which an apportionment has been allowed is that of Long v. Allan, B. R. E. 25 Geo. III., 4 Doug. 276; Park, 589; Marsh. 570, S. C. There the terms of the policy were, "at and from Jamaica to London, warranted to depart with convoy." The ship sailed without any convoy. An express usage was found, that on insurances couched in the same terms with the policy in question, the premium had been returned, deducting one half per cent. if the ship departed without convoy. The court decided in favour of the return of premium, on the ground of the usage. In Rothwell v. Cook, 1 Bos. & Pul. 172, the policy was on ship, "at and from Hull to Bilboa, warranted to depart from England with convoy;" the ship sailed from Hull to Portsmouth, and thence departed with convoy, which not being direct for Bilboa, she afterwards left, and was captured: the warranty not having been complied with, the plaintiff would have been nonsuited, but it was insisted that he was entitled to a verdict for the premium, which was found accordingly. On motion to set aside this verdict, Eyre, C. J., said, "The verdict now stands for the return of the whole premium; and the question is, whether it should stand for the whole, for none, or for a part? If for a part, I do not know how we are to settle it: it must depend on there being, or not being, some rule to be found to direct us in making the decision. Certain it is, that if the ship had been lost in coming round to Portsmouth, the underwriters would have been liable; it is not, therefore, reasonable that they should have been so liable without retaining a proportion of the premium. You should inquire whether there is any rate of premium among the underwriters from Hull to Portsmouth, and whether the premium has ever been apportioned where there has been only one insurance, without distinguishing the different risks in the policy. If you can find any rule, I recommend you to adopt it. But if you cannot agree, we think the whole premium ought not to be returned; and, therefore, the present verdict must be set aside, and the case go to a new trial." Rule absolute. Where there is an agreement to return part of the premium, "if the ship arrived," the assured will be entitled to a return, in the event of an arrival of the ship at the port of destination, although it should appear that the ship has sustained a loss occasioned by a sea risk (p), or that the ship has been captured and recaptured, and the assured has been obliged to pay the salvage (q). But every arrival of the ship at the port of her destination is not an arrival within the fair construction of the agreement; such, for instance, as an arrival in possession of an enemy at a neutral port, to which she was insured, or an arrival at her port in England as the property of other persons after her capture. In short, it must be an arrival at the destined port in the course of her voyage (r). The captors of a ship and cargo effected an insurance restitution was afterwards awarded to the owners (with the exception of a small part of the cargo); it was held, that the captors were not entitled to a return of premium for they had possession of the property insured; and if it were a legal capture, they were entitled; if it were not, the Court of Admiralty might (p) Simond v. Boydell, Doug. 268. : (r) Adm. by Kenyon, C. J., S. C. amerce them in the damages and costs (s). Policy at and from Gottenburgh to Riga upon goods and ship, beginning the adventure upon the goods from the loading thereof aboard the ship at Gottenburgh; it appeared that there were not any goods laden at Gottenburgh, but only at London: it was held, that as the risk upon the goods never commenced, the plaintiff was entitled to a proportional return of premium (t). In the preceding case, the adventure upon the goods is expressly mentioned to begin from the loading at Gottenburgh; but if the place had been omitted, the court would have intended a loading at the place whence the voyage commenced (u). The formal receipt in the policy is conclusive evidence of the receipt of the premium as between the assured and underwriter in an action for the return of the premium (x). Where the assured or his agent (y) have been guilty of fraud, as where the assured knew that the ship was lost, at the time of effecting the policy, the premium cannot be recovered (z); and the same rule holds, where the contract of insurance is illegal (a), unless the assured was ignorant of the illegality at the time of effecting the insurance (b); or unless everything has been done by the assured which lay in his power to legalize the voyage (c); though the endeavour has failed; and although the adventure is never entered upon, yet there ought at least to be some formal renunciation of the contract before the bringing the action (d). If the language of the policy be large enough to comprise an illegal adventure, and the assured contemplated an illegal adventure, the underwriter is not entitled to sue for the premium (e). A policy broker is the agent of both the assured and underwriter, and is the trustee for the assured, as long as the policy remains in his hands, to adjust and receive returns of premium for him when the events have happened on which they are to be made. Hence the broker, having notice that the events have happened which entitled the assured to such returns, is authorized to deduct so much from the gross amount of the premiums, and to pay over the difference only to the underwriter (f). In assumpsit, on a policy of insurance, with a count for money had and received, the defendant had not paid any money into court. The defence was, that the ship was not seaworthy; on which point, without any direct evidence of fraud, the case was submitted to the jury. General verdict for defendant. Note. It was not intimated to the jury, that the plaintiff was entitled to a verdict for a return of premium; on an application to the court, it was held, that the plaintiff was entitled to a verdict for the premium (s) Boehm v. Bell, 8 T. R. 154. (t) Horneyer v. Lushington, 15 East, 46. (u) Spitta v. Woodman, 2 Taunt. 416. (x) Dalzell v. Mair, 1 Campb. 532. (y) Chapman v. Frazer, B. R. T. 33 Geo. III., Park, 329. (z) Tyler v. Horne, London Sittings after H. T. 25 Geo. III., Lord Mansfield, C. J., Park, 329. (a) Lowry v. Bourdieu, and other cases, ante, vol. i. p. 93. (b) Oom v. Bruce, 12 East, 225. on the count for money had and received; but the court hoped, that in future the counsel would in his opening demand the premium, in every case where it was intended to insist upon it on failure of his claim for the loss (g). Where a total loss is recovered, there cannot be a return of premium for convoy, because the total loss includes the entire premium added to the invoice price (h). Upon a mere misrepresentation without fraud, where the risk never attached, the assured is entitled to a return of the premium (i). XII. Of Bottomry and Respondentia. Bottomry.-An agreement entered into by the owner, or, under certain circumstances, by the master of a ship (k), whereby, in consideration of a sum of money advanced, (for the purpose of enabling the borrower to fit out the ship, or purchase a cargo for an intended voyage) the borrower undertakes to repair the same with a stipulated interest, if the voyage shall terminate successfully, and binds himself and the ship and tackle for the due performance of the agreement, is termed bottomry. The term "bottomry" is derived from the original language of the agreement, which merely spoke of the keel or bottom of the ship; but the expression was always considered as being used figuratively, viz. pars pro toto. This agreement is sometimes made in the form of a deed-poll, called a bill of bottomry, executed by the borrower, and sometimes in the form of a bond with a penalty. "Instruments of bottomry are in use in all countries wherein maritime commerce is carried on. The lender of the money is entitled to receive a recompense far beyond the rate of legal interest; this recompense is very properly called in the civil law 'periculi pretium,' and no person can be entitled to it who does not take upon himself the peril of the voyage; but it is not necessary that his doing so shall be declared expressly, and in terms; it is sufficient that the fact can be collected from the language of the instrument considered in all its parts. It has been said, that such instruments, being the language of commercial men, and not of lawyers, should receive a liberal construction, to give effect to the intention of the parties" (l). An assured on bottomry cannot recover against the underwriter, unless there has been an actual total loss of the ship; for if the ship exist in specie, in the hands of the owners, though under circumstances (g) Penson v. Lee, C. B. M. 41 Geo. III., 2 B. & P. 330. (h) Per jury, in Langhorn v. Allnutt, 4 Taunt. 511. (i) Feise v. Parkinson, 4 Taunt. 640. (k) In a foreign country, in the absence of the owners, and in cases of necessity, the master may take up money on bot tomry for the use of the ship; as where a ship, being on a voyage from Bengal to London, was obliged to put back to Bombay to repair. (1) Per Lord Tenterden, C. J., delivering judgment, Simonds v. Hodgson, 3 B. & Ad. 50, on error from C. B. that would entitle the assured on the ship to abandon, it will prevent its being an utter loss within the meaning of the bottomry bond (m). If the money so borrowed is made repayable in any event, and not dependent on the arrival of the ship, the lender has no insurable interest (n). Respondentia.-If the loan is not upon the vessel, but upon the goods and merchandize, which must necessarily be sold or exchanged in the course of the voyage, then by the terms of the agreement the borrower only personally is bound to answer the contract, who, therefore, in this case, is said to take up money at respondentia. Bottomry and respondentia differ very materially from a simple loan (0). 1. In the case of a loan, the money is at the risk of the borrower, and must be repaid at all events. But where money is lent on bottomry or respondentia, the money is at the risk of the lender during the voyage. 2. By stat. 7 Geo. I. c. 21, s. 2, "all contracts and agreements made or entered into by any of his Majesty's subjects, or any person or persons in trust for them, for the loan of any money by way of bottomry on any ship or ships in the service of foreigners, and bound to or designed to trade in the East Indies, are void." By stat. 19 Geo. II. c. 37, s. 5, "all money lent on bottomry, or at respondentia, upon ships belonging to any of his Majesty's subjects bound to or from the East Indies, must be lent only on the ship, or upon the merchandize on board, and shall be so expressed in the condition of the bond; and the benefit of salvage shall be allowed to the lender, who alone shall have a right to make insurance on the money so lent; and no borrower of money shall recover more than the value of his interest in the ship, or in the effects laden on board, exclusive of the money so borrowed; and in case it shall appear that the value of his share in the ship, or the effects on board, does not amount to the full sum or sums he has borrowed as aforesaid, such borrower shall be responsible to the lender for so much of the money borrowed as he has not laid out on the ship or merchandize laden thereon, with lawful interest for the same, in the proportion the money laid out shall bear to the whole money lent, notwithstanding the ship or merchandize shall be totally lost." XIII. Insurance upon Lives. The insurance of life is a contract whereby the insurer (p), in consideration of a certain premium, either in a gross sum or by (m) Thompson v. The Royal Exch. Ass. Comp., 1 M. & S. 30. (n) Stainbank v. Shepherd, 13 C. B. 418. (0) Marsh. 634. As to the power of the master to hypothecate, see Benson v. Duncan, 3 Exch. 655; S. C. 18 L. J., Exch. 172, and judgment of Jervis, C. J., in Stainbank v. Fenning, 11 C. B. 88; and of Parke, B., in Stainbank v. Shepherd, 13 C. B. 44. (p) Marsh. 664. |