obtaining insurance on a vessel need not generally state the nature and condition of her cargo.1

There is one general rule of some importance; it is, that there need be no representation or disclosure of any thing which is distinctly provided for by the policy, whether this is done by an express agreement or warranty, or by a warranty or stipulation which is implied by the law. But even in reference to such things as these, if the insured be interrogated by the insurers, he is bound to make true answers. So, if he volunteers information, it must be true; or not such as would or could mis

the fire which consumed it; upon the common principles of insurance law, the assured cannot recover for a loss which he himself has occasioned. But I most positively say, that they were not bound to represent to the underwriters the state of the goods. It would introduce endless confusion and perpetual controversies, if such a duty were to be imposed upon the assured." See Gladstone v. King, 1 M. & S. 35, ante, p. 162,

n. 4.

1 Chesapeake Ins. Co. v. Allegre, 2 Gill & J. 164.

2 In De Wolf v. N. Y. Firem. Ins. Co., 20 Johns. 214, the property was warranted neutral. It was contended that a contract which might have affected its neutral character should have been disclosed. Spencer, C. J., said: "If it be conceded that those circumstances did enhance the risk, the answer is decisive that a party need not communicate any thing with respect to a fact, in regard to which there is an express or implied warranty." s. c. in error, 2 Cow. 56. So the age of the vessel, and the place where she was built, need not be disclosed. Popleston v. Kitchen, 3 Wash. C. C. 138. See also, Walden v. N. Y. Firem. Ins. Co., 12 Johns. 128; Dennis v. Ludlow, 2 Caines, 111; Haywood v. Rodgers, 4 East, 590; Shoolbred v. Nutt, Park, Ins. 300. So a stipulation in a charter-party that the vessel shall carry goods both on and under deck need not be disclosed to the underwriters of a general policy on the freight. Adams v. Warren Ins. Co., 22 Pick. 163.

It is said by Mr. Duer, and we think, with reason, that this rule should be confined to facts that prove, or tend to prove, the existence of the risk that the warranty is designed to exclude. 2 Duer, Ins. 573. In Murgatroyd v. Crawford, 3 Dall. 491, the vessel was warranted to be an American bottom. A contract of sale had been made with an Englishman, by which the original owner was to retain the register of the vessel and insure her, as the voyage on which it was intended to send the vessel was one, which by the laws of England subjected the vessel to forfeiture if owned by an Englishman. It was agreed that after the insurance was effected, the vessel should be delivered up to the vendee, and be sent on the voyage, and that the owner should empower a passenger to transfer the vessel to the vendee at a certain time when he would have become an American citizen. Shippen, J., said: "The plaintiff warranted the ship to be an American bottom, which of itself superseded, in our opinion, the necessity of making any communication on the subject of the property. But still, if in the opinion of the jury a knowledge of the circumstances that were suppressed, would have induced the insurer to demand a higher premium, or to refuse altogether to underwrite, it will be sufficient on commercial principles to invalidate the pol

lead the insurers. But they would have no right to incorporate by evidence such a representation or statement into their contract, if it be distinctly inconsistent with, or if the subject-matter be distinctly included within the policy; for the rules of evidence do not permit any written contract to be enlarged, diminished, or varied by parol evidence. This last remark applies only to an express warranty or agreement; for so far as a representation extends an implied warranty ceases.3

SECTION IV.

OF THE CONSTRUCTION OF A REPRESENTATION, AND A COMPLIANCE WITH IT.

In general, every representation or statement will be construed according to the fair and obvious meaning of the words, and will include all just and rational inferences from the words; and

1 Haywood v. Rodgers, 4 East, 590.

"at sea

2 In Redman v. Lowdon, 5 Taunt. 462, 3 Camp. 503, the insurance was "at and from London to Berbice," and the words were inserted. A deviation was set up in defence. The assured offered in evidence a letter shown to the underwriters, and other statements made to them, to show that the intention was to insure from the place where the vessel was at sea, to Berbice. Mansfield, C. J., at Nisi Prius, said: "Whatever the intention of the parties might be, I see nothing in this policy to show that it was not to attach at London. I must therefore hold that the underwriters were discharged by the deviation at Madeira." See also, Atherton v. Brown, 14 Mass. 152, and ante, p. 50, n. 2.

But a subsequent written agreement changing the construction of a clause in a policy, has been admitted in evidence. Lothian v. Henderson, 3 B. & P. 499; and we have no doubt that in many of the States of this country a subsequent parol agreement would be binding. See ante, p. 36, n. 1.

* Walden v. N. Y. Firem. Ins. Co., 12 Johns. 128, 135, per Platt, J. In Parks v. Gen. Int. Ins. Co., 5 Pick. 34, 37, Wilde, J., said: “A condition, or an implied undertaking, not expressed in the policy, may be superseded by a verbal or written statement." See also, Emerigon, Meredith's Ed., p. 138.

* In Sibbald v. Hill, 2 Dow, P. C. 263, the representation was contained in letters. Lord Eldon said: "The letters must be taken in their fair and obvious construction, and that an attempt by nice criticisms, to show that they were susceptible of a different meaning, would not do." See Livingston v. Maryland Ins. Co., 7 Cranch,

506.

indeed all facts, which, although distinct, are yet necessarily connected with it; as a statement that a ship is American, includes in its meaning that she has the proper documents to prove her so.1 So, too, a substantial compliance with a representation will be sufficient; 2 and a literal compliance, which is not substantial, will not be sufficient; as where a ship, represented to sail as soon as convoy, sails before, it is no compliance with the warranty.3

The question as to construction, or compliance, has been found difficult, when the representation has one meaning where it is uttered or where it is sent, and another meaning where the insurance is effected. Thus, a ship owned in New York is insured in Boston on a proposition made in a letter from New York, which letter declares her to be "coppered;"- and this is true of her according to the New York usage and meaning of the word, but not true according to the Boston usage and meaning. Mr.

1 Steel v. Lacy, 3 Taunt. 285. In Kirby v. Smith, 1 B. & Ald. 672, there was a representation that the vessel " was all well at Elsineur on the 26th of July." It appeared that she sailed from that port on that day six hours before the vessel, in which the party insured sailed from the same port. Bayley, J., remarked: "It is said that communication was made that the ship was all well at Elsineur on the 26th July; but the natural conclusion from that representation would be that she was left there well at that time, which was contrary to the fact." See also, Ratcliffe v. Shoolbred, Park, Ins. 249. 2 In Chase v. Wash. Mut. Ins. Co., 12 Barb. 595; it was held that a policy which stated that the underwriters insure S. G. C. & Co. on account of the Western Transp. Co. on merchandise by certain specified boats, although it might justify the inference that the assured were common carriers, would not imply that they were the owners of the boats. In Suckley v. Delafield, 2 Caines, 222, it was held that a representation in time of peace, that a vessel should sail in ballast, was substantially complied with, though there was a trunk of merchandise and ten barrels of gunpowder on board. See also, Pawson v. Watson, 2 Cowp. 785; De Hahn v. Hartley, 1 T. R. 343, 345, per Lord Mansfield, C. J.; Farmers' Ins. & Loan Co. v. Snyder, 16 Wend. 481. In Sawyer v. Coasters' Mutual Ins. Co., 6 Gray, 221, a representation that the vessel had arrived safely at a place on a given day, and was clear of her cargo of grain in bulk, was held not to be substantially complied with by her having entered the harbor with a cargo of grain in bulk on board, on that day.

3 Thus a representation that a vessel will sail as soon as some others, "calculating to take advantage of their protection," is not complied with by a sailing before them. Alsop v. Coit, 12 Mass. 40. In Murray v. Alsop, 3 Johns. Cas. 47, it was represented that a bill of sale would be on board to prove the nationality of the vessel. The bill of sale was actually on board. The vessel was captured and the captain denied having it. Held that a substantial compliance with the representation required that it should be produced when the occasion required. See also, Steel v. Lacy, 3 Taunt. 285, supra; Houghton v. Manuf. Mut. F. Ins. Co., 8 Met. 114, 123.

Justice Story held that the Boston meaning must prevail, because every contract must be construed by the law and usage of the place where it is made.1 The supreme court held otherwise; making in fact an exception to, or departure from, this rule. We are able to defend this last decision, if at all, only on the ground that the rule in question yielded to what was considered as the intention of the parties.

It should be added, that the forfeiture or other effect of a misrepresentation may be waived, either expressly or impliedly, as by receiving a new premium after a knowledge of the misrepresentation, or by any other act equivalent to a waiver or to a confirmation or renewal of the contract after such knowledge.3

Policies sometimes provide expressly for the communication to the insurers of new facts, or of changes in important facts. And it seems to be held and for sufficient reasons, that a noncompliance with stipulations or agreements of this kind, discharges the insurers, even though the policy be transferred to another party with the consent of the insurers.1

1 Hazard v. N. E. Mar. Ins. Co., 1 Sumner, 218.

2 Hazard v. N. E. Mar. Ins. Co., 8 Pet. 557. This decision proceeds on the ground that a citizen of one place cannot be presumed to be acquainted with the usages of another, whereas, since underwriters are presumed to know what constitutes sea-worthiness at a foreign port, they should with equal propriety be presumed to know, on a representation, the usage at the place where the vessel lies and where she is described. See ante, p. 144, n. 2.

* See ante, p. 25, n. 1. In Allen v. Vermont Mut. F. Ins. Co., 12 Vt. 366, it was held that receiving a new premium without knowing of the misrepresentation, would not operate as a waiver of it.

* Tennessee Marine & Fire Ins. Co. v. Scott, 14 Mo. 46. The policy in this case contained an agreement that if the insured should change masters or owners, notice should be given without delay, and that the insurers might then end the adventure, by returning a pro rata premium. The vessel insured was sold and notice given to the insurers and no objection was made by them. Afterwards, in consequence of sickness in the family of the master, another person was appointed as master for the trip, but no notice of this was given. It was contended that the assent of the underwriters to the change of owners discharged the obligation. But the court held that the defendants were not liable.

CHAPTER V.

OF THE PREMIUM.

SECTION I.

WHAT THE PREMIUM IS, AND WHO IS LIABLE THEREFOR.

THE promise of the insurers to indemnify the insured, requires, like all other contracts, a valid consideration: and this consideration is the amount paid for the insurance by the party insured, which is called the Premium.1 This is usually regarded as due on the delivery of the policy; but in marine insurance, which is now effected in this country almost exclusively by incorporated companies, the premium is usually paid by a promissory note, given when the policy is delivered, or soon after, and called the premium note.

Our policies usually acknowledge the receipt of the premium; but this can be no bar to a suit for it if it has not been paid. The general rule of law is, that a receipt for money is open to evidence, either to qualify it or to controvert it altogether. It is true that generally no written contract is to be varied by oral evidence. But even in a deed for land, where the receipt for the consideration money is acknowledged under seal, the actual payment may be inquired into and any question raised concerning it which does not tend to impeach or invalidate the deed, or vary any of its provisions; 2 and the same rule must certainly be ap

1 "The word premium," says Emerigon, "comes either from the word præmium, signifying price, or from the word primò, because formerly the premium was paid before all, and at the time of signing the policy." Emerigon, ch. 3, s. 1, Meredith's ed.,

21 Greenl. Ev. 26, note.