Barratry in the master is severely punished by the laws of | and cargo, ought to be equally borne by the ship and her foreign nations; and several statutes have been passed to pre- remaining lading. See Park, 124. 126: Lex Merc.: 2 T. R. vent these crimes in our own country. 407. The 7 and 8 G. 4. c. 30. which repealed the former acts, by § 9. makes it felony, punishable with death, maliciously to set fire to, or to destroy, any ship or vessel, whether complete or in an unfinished state; or maliciously to set fire to, or destroy, any ship or vessel, with intent to prejudice any owner or part owner thereof, or of any goods on board the same, or any person who has underwritten a policy of insurance on such ship, or the freight, or the goods on board the same. By § 43. felonies and misdemeanors under the act committed within the Admiralty jurisdiction, shall be dealt with, inquired of, tried, and determined, in the same manner as any other felony or misdemeanor committed within that jurisdiction. And by § 12. of the 7 and 8 G. 4. c. 28. all offences prosecuted in the Court of Admiralty shall be subject to the same punishments of death or otherwise, as if committed on the land. The French ordinance, Liv. 3. tit. Du Jet. art. 13. in express terms excludes from the benefit of general average goods stowed upon deck; and the same rule prevails in practice in this country; Myer v. Vander Deyl, coram Lord Ellenborough, sittings after Michaelmas, 1803: Backhouse v. Ripley, coram Chambre, J. Abbot, on Merchant Ships, &c. part iii. c. viii. 323; for goods so stowed may, in many cases, obstruct the management of the vessel; and, except in cases where usage may have sanctioned the practice, the master ought not to stow them there without the consent of the merchant. If goods be put on board a lighter to enable the ship to sail into harbour, and the lighter perish, the owners of the ship and remaining cargo are to contribute; but if the ship be lost, and the lighter saved, the owners of the goods preserved are not to contribute; the lightening of the ship being an act of deliberation for the general benefit, but the saving the lighter being accidental, and no way proceeding from a regard for the whole. Park, 124. To this head may also be referred the provision in stat. 33 G. 3. c. 66. § 8. which subjects the captain of any merchantship under convoy, who shall wilfully disobey the signals An action upon promises lies by a shipowner to recover or instructions of the commander of the convoy, or desert from the owner of the cargo his proportion of general average the convoy without notice or leave, to prosecution in the loss, incurred by sacrificing the tackle belonging to a ship for Admiralty Court, there to be sentenced to a fine not exceed- an unusual purpose, or an extraordinary occasion of danger, for ing 500l., and imprisonment for not more than one year. See the benefit of the whole concern. 1 East, 220. ante, I. 3. 5. The word average is applied in various senses in policies of insurance, which in this, above all other particulars, are indistinct and confused. It is used as well for a contribution to a general loss as for a particular partial loss. On the present occasion we shall consider the term of general or gross average, in the former sense, and average loss in the latter. Park, 99: 3 Burr. 1555. Small, or petty average, consists of such charges as the master is obliged to pay, by custom, for the benefit of the ship and cargo; such as pilotage, beaconage, &c. The term is also used for a small duty paid by merchants, who send goods in the ships of other men, to the master, over and above the freight, for his care and attention: none of these charges ever fall upon the underwriter. Park, 100. See this Dict. tit. Average. When goods are thrown overboard in a storm to lighten the ship, for the general safety of the ship and cargo, the owners of the ship and of goods saved are to contribute for the relief of those whose goods are ejected: this is called contribution, or general average, and was first used by the Rhodians, and introduced into England by William the Conqueror. Against all losses arising from hence, the underwriter, by his contract, expressly undertakes to indemnify the insured. Park, 99. 121. 129: 3 Burr. 1555: 8 T. R. 513: Lex. Merc. Three things, it has been said, must concur to make the act of throwing goods overboard legal. 1st. That what is so condemned to destruction, be in consequence of a deliberate and voluntary consultation, between the master and men. 4 M. & S. 146. 2nd. That the ship be in distress, and that sacrificing a part be necessary for the preservation of the rest. 3rd. That the saving of the ship and cargo be owing to the means used with that view. But the second seems to be the only material one. If, therefore, this jettison (the throwing over of the goods) do not save the ship, but she perish in the storm, there shall be no contribution of such goods as may happen to be saved; but if the ship, being once preserved by such means, be afterwards lost, the property, if any, saved from the second accident, shall contribute to the loss occasioned by the former jettison. Park, 123. And see 12 Co. 63. The various accidents and charges which will entitle the suffering party to call for a contribution, cannot easily be enumerated; but it may be laid down as a general principle, that all losses sustained, and expenses incurred, voluntarily and deliberately, with a view to prevent the total loss of the ship Diamonds and jewels, when a part of the cargo, must contribute according to their value; but ship provisions, the persons of the passengers, wearing apparel, and such jewels as merely belong to the person, bottomry or respondentia bonds, and the wages of the sailors, shall not any of them contribute. Park, 126, 127. 129. 422. See also this Dict. tit. Carrier. In order to fix a right sum on which the average or contribution may be computed, and which in general is not made till the ship's arrival at her port of discharge, it is to be considered, what the whole ship, freight, and cargo, would have produced net, if no jettison had been made; and then the ship, freight, and cargo, are to bear an equal and proportionable part of the loss. According to the custom of merchants in England, the goods thrown overboard are to be estimated at the price for which the goods saved were sold, freight, and all other charges, being first deducted. Park, 127, 128. The general rules as to a partial loss, and its consequences, were settled in the case of Lewis v. Rucker, 2 Burr. 1167. et seq. from whence much of the subsequent information is drawn; but the whole of the law on this part of the subject is more intricate and perplexed than on any other question of insurance. Partial loss, then, when applied to the ship, means a damage, which she may have sustained in the course of her voyage, from some of the perils mentioned in the policy. When to the cargo, it means the damage which the goods have suffered from storm, &c., though the whole or greater part thereof may arrive in port. By express stipulation in the terms of the London policies, these losses do not fall upon the underwriters, unless they amount to 31. per cent.; but if a loss, arising from a general average (i. e. a contribution to a general loss), should be under 31. per cent., the underwriter is liable. And in all cases of a partial loss, the value in the policy can be no guide to ascertain the damage; but it becomes the subject of proof as in case of an open policy. Park, 101. 110. When goods are partially damaged, the underwriter must pay the owner such proportion of the prime cost or value, in the policy (or if no value is stated in the policy, then of the invoice price, with all charges and premium of insurance), as corresponds to the proportion of diminution in value occasioned by the damage. Where an entire thing, as one hogshead of sugar, happens to be spoiled, if you can fix whether it be a third or fourth worse, then the damage is ascertained; but this can only be done at the port of delivery, where the whole damage is known, and the voyage is completed; and whether the price of the commodity be high or low, it equally ascertains the proportion of damage, though no regard is to be paid to the rise or fall of the market, as to the sum to be paid by the insurer, which is, in either case, to be regulated only by the prime cost or invoice price. Park, 103. &c.: 2 Burr. 1167. The rule by which to calculate a partial loss on a policy on goods by reason of sea damage, is the difference between the respective gross proceeds of the same goods when sound and when damaged, and not the net proceeds; it being settled, that the underwriter is not to bear any loss from fluctuation of market or port duties or charges after the arrival of the goods at their port of destination. 2 East, 581. These rules can only apply to cases where there is a specific description of goods; but where the property is of various kinds, an account must be taken of the value of the whole, and a proportion of that as the amount of the goods lost. Park, 111. But the striking of a ship on a rock, where she remained a minute and a half, and was laid on her beam ends, was held not to constitute a stranding within the meaning of that term in a policy of assurance. 4 M. & S. 503. Stranding, according to its legal signification, is, when a ship by accident is on the ground or strand, in such a situation as she ought not to be in while prosecuting the voyage on which she is bound, and is injured thereby; and the underwriters are liable, though such stranding be occasioned by the negligence of the master or mariners. Bishop v. Pentland, 7 B. & C. 219: 1 R. & M. 49. Where a ship grounds in the ordinary course of navigation, as from the flux or reflux of the tide, without any external force, it is not a stranding; but where it arises from an acci dent, it is. 2 B. & Ad. 20: and see also 2 B. & A. 315: 5 B. & A. 225: 8 Bing. 456. The salvage to ships of war or privateers for re-capture from the enemy, and the charges thereon (see prize acts, 29 G. 2. Some goods are of a perishable nature, and, against the c. 34: 43 G. 3. c. 160. § 39), and the charges incurred in losses arising from the principle of corruption inherent in such, obtaining the release of a ship unjustly detained, and reclaimthe underwriters of London have exempted themselves, bying it in the Court of Admiralty, have been enumerated among declaring in a memorandum contained in all their policies, the subjects of general average. 1 Emerig. 629. 631. that they will not be answerable for any partial loss happening to corn, fish, salt, fruit, flour, or seed, unless it arise by way of general average, or in consequence of the ship being stranded; against a loss by which latter event, however, in cases of these perishable commodities, the two insurance companies already mentioned do not undertake to be answerable. See 3 Burr. 1553. On this clause it has in several cases been uniformly held that no loss shall be deemed total so as to charge the insurers in case of such perishable commodities, as long as the commodity specifically remains, though perhaps wholly unfit for use. 3 Burr. 1550. The case in 2 Stra. 1065. to the contrary, has been since over-ruled by that of Mason v. Skurray, Park, 116. in which it was also held, that the term corn included peas and beans, and other particulars. See Park, 112. 117. Underwriters are not entitled to notice of the part of the ship where goods are stowed, whether on deck or otherwise. 2 Chitty, 227: 4 Camp. 142. Where, after seizure by an armed mob, the vessel was stranded, and part of the cargo (consisting of corn) taken by the mob at their own price, the loss cannot be recovered as for a general average; but for such part as, in consequence of the stranding, was damaged and thrown overboard, the insured may recover, on a count, stating the loss to be by stranding. 4 T. R. 783. The usual memorandum "corn, fruit, &c. warranted free from average, unless general or the ship be stranded," and the ship be in fact stranded in the course of the voyage, the underwriters are liable for an average loss arising from the perils of the seas, though no part of the loss arise from the act of stranding. 7 T. R. 210. And in a case of a ship running on some wooden piles four feet under water erected in Wisbeach river about nine yards from the shore, but placed there to keep up the banks of the shore, and lying on such piles till they were cut away, was a stranding within the meaning of the memorandum in the policy so as to subject the underwriters to an average loss on corn, and the jury found accordingly. Dobson v. Bolton, sittings after Easter T. 1799. Park, 4th edit. 111. a. See also Bowring v. Elmslie, Park, 5th edit. p. 115. b. So where a ship being under conduct of a pilot in her course up the river to Liverpool, was, against the advice of the master, fastened at the pier of the dock basin by a rope to the shore, and left there, and she took the ground, and when the tide left her, fell over her side and bilged, in consequence of which, when the tide rose, she filled with water, and the goods were wetted and damaged; held, that this was a stranding to entitle the assured to recover for an average loss upon the goods. 4 M. & S. 77. The wages and provisions of the crew, while a ship remained in port, whither she was compelled to go for the safety of ship and cargo in order to repair a damage occasioned by tempest, were held not to be the subject of general average; nor the expenses of such repair, nor the wages and provision of the crew during her detention in port to which she returned, and was detained there on account of adverse winds and tempest; nor the damage occasioned to the ship and tackle by standing out to sea with a press of sail in tempestuous weather, which press of sail was necessary for that purpose, in order to avoid an impending peril of being driven on shore and stranded. 4 M. & S. 141. The insurer of goods to a foreign country is not liable to indemnify the assured (a subject of that country), who is obliged by the decree of a court there to pay contribution to a general average, which, by the law of this country, could not have been demanded, where it does not appear that the parties contracted upon the footing of some usage among merchants obtaining in the foreign country, to be at the same as general average, but such usage is to be collected merely from the recitals and assumption made in the decree. Ibid. When the quantity of damage sustained in the course of the voyage is known, and the amount which each insurer is to pay is settled, it is usual for the underwriter to indorse on the policy, "Adjusted this loss at so much per cent." This is called an adjustment; after which, if the underwriter refuse to pay, the owner has no occasion to go into the proof of his loss, or any of the circumstances, the adjustment being considered as a note of hand. Park. 117, 118. So after judgment by default upon a valued policy, the plaintiff's title to recover is confessed, and the amount of the damage is fixed by the policy. Dougl. 315. Thellusson v. Fletcher. And if a loss be total at the time of the adjustment, and the insurer pay for a total loss, the insured is not obliged to refund, if it should afterwards turn out to be partial, but the insurer will stand in the place of the insured. 6. Salvage is an allowance made for saving a ship or goods, or both, from the danger of the seas, fire, pirates, or enemies; in which sense it is there used, though it is also sometimes incorrectly applied to signify the thing itself which is saved. Park. 131. And the saver has such a property in the goods, saved by his own exertions and danger, that in an action of trover it has been held the defendants might retain the goods till payment of the salvage. 1 Lord Raym. 393; 2 Saik. 654. Cases of salvage may be divided into two classes; cases of loss by the perils of the sea, and cases of capture. Where goods at sea are preserved in time of danger, there is no rate of salvage fixed. But when a ship has been wrecked, the law of England, by various statutes, declares, that reasonable salvage only shall be allowed to those who save the ship or any of the goods; and what shall be a reasonable allowance must be ascertained by three justices of the peace. See 12 Anne, st. 2. c. 18. (made perpetual by 4 G. 1. c. 12.): 26 G. 2. c. 19: and 1 and 2 G. 4. c. 76. which has made further provisions as to the adjustment of salvage under the 12 Anne, st. 2. c. 18. As to the salvage on goods liable to the payment of duty, see the last general act for the management of the customs, 3 and 4 W. 4. c. 52. § 49, 50, 51. | | On the other hand, if the insurer rejects the abandonment, he must do so in a reasonable time. 2 Bro. & B. 97. 147. If the insured, hearing that the ship is disabled and has put into port to repair, express his desire to the underwriters to abandon, and be dissuaded from it by them, and they order the repairs to be made, they are liable to the owner for all the subsequent damage occasioned by that refusal, though it should amount to the whole sum insured. 2 T. R. 407. When an abandonment is made, it must be total and not partial. And though the insured may in all cases choose not to abandon, yet he cannot at his pleasure abandon, and thereby turn a partial into a total loss. 2 Burr. 697. The right of owners on re-capture has been already noticed (ante, 2.). The salvage in this case is regulated by stats. 13 G. 2. c. 4. § 18: 29 G. 2. c. 34. § 24: which enact, that if any prize taken from the enemy shall appear to have belonged We have already seen (ante, II. 1.) that the insured may to any of his Majesty's subjects, it shall be restored to the abandon to the underwriter, and call upon him for a total loss, former owner, upon his paying, in lieu of salvage, one-eighth if the damage exceed half the value; if the voyage be absoof the value, if retaken at any time by one of his Majesty's lutely lost, or not worth pursuing; if further expence be neships. If retaken by a privateer, before it has been twenty- cessary, and the insurer will not engage, at all events, to bear four hours in the possession of the enemy, the salvage paid to that expence, though it should exceed the value, or fail of be one-eighth of the value; if above twenty-four and under | success. But he cannot abandon unless at some period or other forty-eight hours, one-fifth; if above forty-eight and under of the voyage there has been a total loss. 1 T. R. 187: Park, ninety-six hours, one-third part thereof: and if above ninety- | c. 9. p. 166. Also, if neither the thing insured, nor the six hours, a moiety or one-half part thereof; or, if the ship so voyage, be lost, and the damage does not amount to a moiety retaken have been fitted out by the enemy as a ship of war, the of the value, he shall not be allowed to abandon. See 2 Burr. salvage is in all cases settled at a moiety. See 43 G. 3. c. 160. 1211: 3 Atk. 195: and Goss v. Withers, 2 Burr. 683. Which § 39: and 45 G. 3. c. 72. § 7. latter was the first case in which the doctrine of abandonment was gone into at large, and the above principles fully settled, which have ever since been strictly adhered to, and were particularly recognized in Milles v. Fletcher, Dougl. 219. 231.— And in Hamilton v. Mendes, it was solemnly determined that the right to abandon must depend on the nature of the case at the time of the action brought, or at the time of the offer to abandon: in that case, therefore, where there was a capture and re-capture, and it was stated, that at the time of the offer to abandon, the peril was over, as the ship was safe in port, and had suffered no damage, the court held that the insured had no right to abandon. 2 Burr. 1198: 1 Black. Rep. 276. See also, Park, c. 9. Wearing apparel of the master and seamen is always excepted from the allowance of salvage. The valuation of a ship and cargo, in order to ascertain the rate of salvage, may be determined by the policies of insurance made on them respectively, if there be no reason to suspect they are undervalued. If there be no policy, the real value must be proved by invoices, &c. Park, 140: Lex Merc. Underwriters, by their policy, expressly undertake to bear all expences of salvage. It is therefore not necessary to state them in a declaration as a special breach of the policy. Hard. 304. See ante, I. 4. But if the insurer pay to the insured such expences, and from particular circumstances the loss be repaired by unexpected means, the insurer shall stand in the place of the insured, and receive the sum thus paid to atone for the loss. 1 Ves. 98. Salvage, payable under a decree of the Court of Admiralty, must be proved by regular evidence of the judgment of the court. Thellusson v. Sheddon, 2 New Rep. 229. Where the salvage is high, and the other expences are great, and the object of the voyage is defeated, the insured is allowed to abandon to the insurer, and call upon him to contribute for a total loss, which brings us to the subject of, 7. Abandonment.-Before a person insured can demand from the underwriter a recompence for a total loss, he must (except in the cases after mentioned) abandon to him whatever claims he may have to the property insured; and when the underwriter has discharged his insurance, and the abandonment is made, he stands in the place of the insured, and is entitled to all the advantages resulting from that situation, in case the ship or property, &c. is not totally lost, or is afterwards restored by re-capture, &c. See Park, c. 9: 1 Ves. 98. Abandonment is as ancient as the contract of insurance itself: the time within which it must be made was not, however, fixed in England till lately. It is now held, that as soon as the insured receive accounts of such a loss as entitles them to abandon, they must, in the first instance, make their election whether they will abandon or not; and if they abandon, they must give the underwriters notice in a reasonable time, otherwise they waive their right to abandon, and can never after recover for a total loss. I T. R. 608. An assured, however, is entitled to a reasonable time for acquiring a full knowledge of the state of a damaged cargo before he is bound to elect, whether he shall abandon to the underwriters as for a total loss. 6 Taunton, 383: and see 15 East, 13: 5 M. & S. 47. A loss of voyage for the season by perils of the sea is not a ground of abandonment upon a policy on goods with a clause of warranty, free from average, &c. where the cargo is in safety, and not of such a perishable nature as to make the loss of voyage a loss of the commodity, although the ship is rendered incapable of proceeding in the voyage. The assured are bound to give notice of abandonment at the earliest opportunity; notice given five days after they received intelligence of the loss was held too late. If one of several jointly interested in the cargo effects an insurance for the benefit of all, he may give notice of abandonment for all. 5 M. & S. 47. But where ship and freight were insured by separate sets of underwriters, and the ship being a general ship was captured, and ship and freight were abandoned to the respective underwriters, who paid each a total loss; and the ship being recaptured, performed her voyage and earned freight; which was received by the defendant for the use of those who were legally entitled thereto; held, that the underwriter on the ship was entitled to recover. 5 M. & S. 79: 2 Brod. & B. 379. An abandonment made after capture under circumstances which would entitle the assured at the time to recover as for a total loss is not defeated so as to become an average loss only, by the mere restitution and return of the ship's hull, before action brought, if the restitution be under such condition as to make it uncertain whether the assured may not have to pay more than its worth. 4 Maule & S. 576. A ship having been sold under a decree of the Admiralty Court to pay the salvage, and it not appearing that the assured had taken any means to prevent such sale, held, they had no right to abandon. 2 B. & A. 513. An abandonment is not necessary unless the thing insured exist in specie in the hands, or, at least, for the benefit of the insured, and it must exist in such a state of integrity as to be be run." The above rules, and the whole doctrine of concealment, were laid down in Carter v. Boehm, which was an insurance by the governor of Fort Marlborough in Bencoolen, against the event of the fort being taken by an European power in the course of a year. 3 Burr. 1905: 1 Black, 593. And the rules there advanced and illustrated have been confirmed in subsequent cases. Planche v. Fletcher, Dougl. 238. 251: and see Park, c. 10. fit for some useful and available purpose. 13 East, 304: | the object of the policy, and changing the risk understood to 2 Barn. & Cres. 691. Where a ship is so much injured by perils of the sea as not to be repairable at all, or not repairable without an expence exceeding her value when repaired, the assured may recover as for a total loss, without giving notice of abandonment. And Abbott, C. J. said, "If the subject matter of insurance remained a ship, it was not a total loss; but if it were reduced to a mere congeries of planks, the vessel was a mere wreck. The name which you may think fit to apply to it cannot alter the nature of the thing." 2 Barn. & C. 691: 1 Ry. & Moo. 60: 8 Barn, & C. 561: and see Bac. Ab. Merchant, I. vol. 5. 471. (edit. by Gwillim & Dodd.) It seems that in case of an insurance on freight, abandonment is unnecessary. 6 Taunt. 68: 8 Taunt. 755: 4 Bing. 388: 1 Camp. 541. III. 1. Policies are annulled by the least shadow of fraud, or undue concealment of facts; both parties are therefore equally bound to disclose circumstances within their knowledge. And if the underwriter, at the time he underwrote, knew that the ship was safe arrived, the contract will be equally void, as if the insured had concealed any accident that had befallen the ship. Park, c. 10: 2 Comm. 460: 1 Black. Rep. 594: 3 Burr. 909. A person insuring is bound to communicate every intelligence he has that may affect the mind of the underwriters, either as to whether he will insure at all, or at what premium he will insure. 1 Lloyd & W. 132. The opinion of underwriters as to the materiality of communicating a particular fact is not admissible in evidence, and the materiality of such communication is a question for the jury, not for the court. 2 N. & M. 542. Cases of fraud upon this subject are liable to a threefold division: 1st. The allegatio falsi; 2nd. The suppressio veri; 3rd. Misrepresentation. The latter is made a separate head; as though, if wilful, it is a direct fraud; yet if it happen by mistake, it will equally vitiate the policy, should it be in a material point. Park, c. 10. See Dougl. 247. 260. As to the first head, several cases have determined that the policy shall be void, where goods, &c. are insured as the property of an ally, or as neutral property, when in fact they are the goods of an enemy: and such false assertions in a policy will vitiate the contract, though the loss happen in a mode not affected by that falsity. Park, c. 10: Skin. 327: 3 Burr. 1419: 1 Black. Rep. 427. The second species of fraud, concealment of circumstances, vitiates all contracts of insurance. The facts upon which the risk is to be computed lie, for the most part, within the knowledge of the insured only. The underwriter relies upon him for all necessary information; and must trust to him that he will conceal nothing, so as to make him form a wrong estimate: on this ground, where one having an account that a ship, described like his, was taken, insured his own ship, without giving any notice to the insurers of what he had heard, the policy was decreed in equity to be delivered up. 2 P. Wms. 173. See 1 Black. Rep. 463. 594: 2 Stra. 1183: Park, c. 10. But there are many matters as to which the insured may be innocently silent; 1st. As to what the insurer knows, however he came by that knowledge; 2nd. As to what he ought to know; 3rd. As to what lessens the risk. And it may here be remarked, that an underwriter is bound to know political perils as to the state of war or peace. He also ought to be acquainted with the nature and danger of every voyage, which may be called natural perils: if he insure a privateer, it is understood that he is not to be informed of its destination; and, as men reason differently from different facts, he needs not be told another's conclusion from known facts. In short, the question, in cases of concealment, must always be, "Whether there was, under all the circumstances, at the time the policy was underwritten, a fair statement or concealment; fraudulent, if designed; or, if not designed, varying materially Where a ship had sailed from Elsineur on her voyage home six hours before the owner, who had followed in another vessel on the same day, and having met with rough weather in his passage, arrived first, and then caused an insurance to be effected on his own ship: held, that these circumstances were material to be communicated to the underwriter, and that it was not sufficient to state, merely, that the ship insured was "all well at E. on the 26th July," the day of her sailing. 1 B. & A. 672. But where a vessel having sailed, put back to the Downs, and then sailed again, and laboured and strained much from being overladen, and then put back a second time; and upon an application to the underwriters for liberty for the ship to go into port to discharge part of her cargo, it was only communicated to them that the ship was too deep in the water: held that as the subsequent loss had not in any degree arisen from her having so strained and laboured, the communication of that fact was immaterial, and that the communication made was quite sufficient. 2 B. & A. 320. The concealment of material intelligence vitiates a policy, although the account which the insured conceals turns out after wards to be false (3 Taunt. 37: 14 East, 494); or although a loss afterwards happens which has no reference to the intelligence withheld (2 Str. 1183); or although the concealment was without a fraudulent design. 3 Burr. 1905: 1 T. R. 12. The policy is void if the broker conceal any material cir cumstances, though the only ground for not mentioning them should be that the facts concealed appeared immaterial to him. Dougl. (293.) 306. n. But the thing concealed must be some fact, not a mere speculation or expectation of the insured. Dougl. (292.) 305. A representation is a state of the case, not forming a part of the written instrument or policy, as a warranty does. Therefore, if there be a misrepresentation, it will avoid the policy as a fraud, but not as a part of the agreement, as in the case of warranty. And if a representation be false in any material point, even through mistake, it will avoid the policy, because the underwriter has computed the risk upon circumstances which did not exist. Park, c. 10. In the case of Pawson v. Watson, Lord Mansfield stated, that "there cannot be a clearer distinction than that which exists between a warranty, which makes part of the written policy, and a collateral representation, which, if false in a point of materiality, makes the policy void; but if not material it can hardly ever be fraudulent. Comp. 785. And in Mackdowal v. Frazer, the same learned judge laid down that "a representation must be fair and true. It should be true as to all the insured knows; and if he represents facts to the underwriter, without knowing the truth, he takes the risk upon himself." But the difference between the fact, as it turns out, and as represented, must be material. Dougl. (247.) 260. See also Bize v. Fletcher, or Lavabre v. Wilson, Dougl. (271.) 284: 9 B. & C. 693: and ante, I. 3. And such a representation made to the underwriter, who first signs a policy, enures for the benefit of any one who may sign it after him. Comp. 789: Doug. 11. note 3. Insuring a ship by an English name does not amount to a representation that she is an English ship. 3 Camp. 382. A representation made by an insurance broker, when the names of the underwriters are written upon a slip, is binding on the assured, unless qualified or withdrawn by some communication upon the subject between that time and the execution of the policy. 1 Camp. 538. Where a trader shipped goods for Cagliari, on board a general | So, whenever a ship, in order to escape a storm, goes out of the ship, represented as sailing with licence and without convoy, and bound for Gibraltar, Cagliari, and Majorca, which had a licence to sail without convoy to Gibraltar only, and sailed from Gibraltar without convoy or licence, an officer being appointed there to grant licences under certain circumstances, held that an insurance of such goods by the shipper was void. 6 Taunton, 544. If the assured, after subscription by the underwriter, strike out with a pen the time of warranty of sailing, which stood in the body of the policy, and inserts in a memorandum in the margin a different time for sailing, which the underwriter does not sign, he destroys the policy, and the underwriter is discharged from the original contract. Fairlie v. Christie, 7 Taunton, 412. In all these cases of fraud, wherever there has been an allegation of falsehood, a concealment of circumstances, or a misrepresentation, it is immaterial whether it be the act of the person himself who is interested, or of his agent; for in either place the contract is founded in deception, and the policy is consequently void. And this rule prevails, even though the act cannot be at all traced to the owner of the property insured. Stewart v. Dunlop, in Dom. Proc. 1785: 1 T. R. 12: Park, c. 10. A policy will not, however, be set aside on the ground of fraud unless it be fully and satisfactorily proved; and the burden of proof lies on the person wishing to take advantage of the fraud. At the same time, positive and direct proof of fraud is not to be expected, and from the nature of the thing circumstantial evidence is all that can be given. Park, 214. As to the return of premium in cases of fraud, see post, 8. 2. It being necessary, except in some special cases, to insert the name of the ship on which the risk is to be run in the policy, it follows, as an implied condition, that the insured shall neither substitute another ship for that mentioned in the policy before the voyage commences, in which case there would be no contract at all; nor, during the voyage, remove the property insured from one ship to another without consent of the insurer, or without an unavoidable necessity, under which every thing possible must be done for the benefit of all concerned; if he do, the implied condition is broken, and he cannot, in case of loss, recover against the underwriter. Park, c. 16. See 2 Stra. 1248: 1 Burr. 351: 1 Term Rep. 611. note. 3. Deviation is understood to mean a voluntary departure, without necessity or any reasonable cause, from the regular and usual course of the specific voyage insured. Whenever this happens, the voyage is determined; and the insurers are discharged from any responsibility; because the ship goes upon a different voyage from that against which the insurer undertook to indemnify. And it is not material in this case whether the loss be or be not an actual consequence of the deviation: for the insurers are in no case answerable for a subsequent loss, in whatever place it happen, or to whatever cause it may be attributed. Neither does it make any difference whether the insured was or was not consenting to the deviation. Park, c. 17. p. 294: and see Elliot v. Wilson, Bro. P. C. If therefore the master of a vessel put into a port not usual, or stay an unusual time, it is a deviation. And if the deviation be but for a single night, or for an hour, it is fatal. But if a merchant ship carry letters of marque she may chase an enemy, though she may not cruize, without being deemed guilty of a deviation. Park, 295-299. Wherever the deviation is occasioned by absolute necessity, as where the crew force the captain to deviate, the underwriters continue liable. 2 Stra. 1264. And the general justifications for a deviation seem to be these: to repair the vessel, to avoid an impending storm, to escape from an enemy, or to seek for convoy. If therefore a ship is decayed, or hurt by a storm, and goes to the nearest port to refit, it is no deviation, because it is for the general interest of all concerned. 1 Atk. 545: Park, c. 17. direct course, or, when in the due course of the voyage, is driven out of it by stress of weather, this is no deviation. And if a storm drive a ship out of the course of her voyage, and she do the best she can to get to her port of destination, she is not obliged to return to the point from which she was driven. 1 T. R. 22: Park, c. 17. A deviation may also be justified, if done to avoid an enemy, or seek for convoy, because it is in truth no deviation to go out of the course of a voyage, in order to avoid a danger, or to obtain a protection against it; if in all cases the master of a ship act fairly and bona fide according to the best of his judgment. 2 Salk. 445: 2 Stra. 1265: Holt. 185: Marsh, 265: | Park, c. 17. Thus, where the policy contains no warranty against seizure in port, if the ship to avoid such seizure runs to sea before she is properly loaded, and is in consequence obliged to go to a port out of the direct course of the voyage insured, the underwriters are liable for a subsequent loss. 4 Camp. 249. Otherwise, where there is a warranty against such seizure. 4 Camp. 246. If part of the crew, who are necessary to the navigation of the ship, be arrested by a press-gang, and the captain go ashore to procure their release, a delay so occasioned arises ex justá causâ, and the underwriters will not be discharged by it; aliter, if they are unnecessary. 4 Camp. 62. A deviation may be justified, if done to succour a ship in distress, per Lawrence, J. 6 East, 54. In all cases of deviation, it may be laid down as a general rule, that, wherever a ship does that which is for the general benefit of all parties concerned, the act is as much within the spirit of the policy as if it had been expressed: and, in order to say whether a deviation be justifiable or not, it will be proper to attend to the motives, end, and consequence of the act as the true ground of judgment. Comp. 601. But to avoid as much as possible any additional risk, in case of a deviation from necessity, the ship must pursue such voyage of necessity in the direct course, and in the shortest time possible, as nothing more must be done than the necessity requires, otherwise the underwriters will be discharged. Dougl. (271.) 284. If the voyage described in the policy be from "A. to B. and C." and the ship go to C. before B. (though C. be nearer to A. than B. is), it is a deviation, if it be not the regular and settled course of the voyage to go to C. first. 6 T. R. 531. If a ship mean to go to more than one of the places named in a policy, she must visit them in the order in which they stand in such policy. 3 East, 572. And in the same succession in which they occur in the course of voyage insured; 3 Taunt. 16; and for purposes only connected with the voyage. 4 Barn. & A. 72: 15 East, 278. A ship was permitted by licence to proceed from D. to L., and thence to B., there to lade, to the destination of the port from which she departed. The vessel proceeded on her voyage from D. to L. and from L. to B.: held, that she was not protected by the licence on a further voyage, from B. to L. 1 B. & A. 142. A deviation of a vessel from the voyage insured through the ignorance of the captain, or from any other motive not fraudulent, though it avoids the policy, does not constitute an act of barratry. 7 T. R. 505. Policy on goods, on board a particular ship, from A. to B. "against sea risk and fire only:" in the course of the voyage from A. to B. the ship was carried out of the course of the voyage insured, and while so proceeding, the goods insured sustained sea damage: held, the underwriters were liable for this loss. 1 Bos. & Pull. N. R. 181. A policy of insurance on a ship on a certain commercial voyage, with or without letters of marque, giving leave to the assured to chase, capture, and man prizes, however it may warrant him in weighing anchor, while waiting at a place in the course of the commercial voyage insured, for the purpose of |