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1. Pothier terms it a contract du Droit des Gens.
2. Stat. 21 Geo. II. ch. 4.
3. Henkle v. The Royal Exchange Assurance Company, 1 Vesey's Rep. 317.
4. 6 Term Rep. 23.
5. 6 Term Rep. 35.
6. 1 Bos. & Pull. 345.
7. Furtado v. Rodgers, 3 Bos. & Pull. 191. Gamba v. La Mesurier, 4 East's Rep. 407. Brandon v. Curling, ibid. 410.
8. Lord Ellenborough, Kellner v. La Mesurier, 4 East's Rep. 396. Lord Erskine, Ex parte Lee, 13 Vesey's Rep. 64.
9. The ordinances of Barcelona, as early as 1484, declared such insurances void. Consulat de la Mar. par Boucher, tom. ii. 717. See also, Le Guidon, ch. 2. sec. 5. in Cleirac, Us et Coutumes de la Mer. p. 197. edit. 1671. Ord. of Stockholm, of 1756. 2 Magens, 257. Ord. of the States General of the Netherlands, in 1622, 1657, 1665, and 1689, cited in Bynck. Q. J. Pub. lib. i. ch. 21. Emerigon, des Ass. tom. i. 128.
10. Valin's Com. tom. ii. 32.
11. 16 Johns. Rep. 438.
12. Emerigon, tom. i. 423. Boulay Paty, tom. iii. 379. Plantamour v. Staples, 1 Term Rep. 611, note.
13. Emerigon, tom. i. 173. Kewley v. Ryan, 2 H. Blacks. 343. Henchman v. Offley, ibid. 345, note.
14. Boulay Paty, tom. iii. 528, 531, tom. iv. 28.
15. Valin's Com. tom. ii. 34. 1 Emerigon, 293, 294. Graves & Barnewell v. Boston Marine Insurance Co., 2 Cranch's Rep. 419. Dumas v. Jones, 4 Mass. Rep. 647.
16. Lawrence v. Sebor, 2 Caines' Rep. 203.
17. Valin. tom. ii. 34. Boulay Paty, tom. iii. 386.
18. 5 Burr. Rep. 2803, 2804. Park, 31.
19. Rota Genuae Decisio, 42. n. 8. Roccus de Ass. n. 51. Emerigon, tom.ii. 121.
20. Le Guidon, ch. 12. art. 2. Ord. de la Mar. tit. des Assurances, art. 4. Code de Commerce, art. 337. Boulay Paty, Cours de Droit Com. tom. iii. 411, 412.
21. Boulay Paty, tom. iii. 388, 389.
22. 2 Magens, 26, 68. Le Guidon, ch. 2. art. 11.
23. Dalzell v. Mair, 1 Campb. Rep. 532. Foy v. Bell, 3 Taunton Rep. 493.
24. 1 Binney's Rep. 429.
25. 2 Marshall on Ins. by Condy, 800, 803, 805. Phillips on Ins. 11. Carter v. Union Ins. Co. 1 Johns. Ch. Rep. 463. Wakefield v. Martin, 3 Mass. Rep. 558. Bell v. Smith, 5 B. & Cress. Rep. 188.
26. Johnston v. Sutton, Doug. Rep. 254. Parkin v. Dick, 11 East's Rep. 502. The United States v. The Paul Sherman, 1 Peter's Rep. 98. Phillips on Ins. p. 35. 1 Emerigon, 210, ch. 8. sec. 5. And see his opinion in a note to 2 Valin, 130; in which he refers to Straccha de Assecur. Glossa, 5. n. 2, 3, where we have the establishment of the above doctrine, that the insurance of prohibited goods is null and void, founded on the sound principle that in mercibus illicitis non sit commercium. The same principle is in Roccus de Assecur. n. 21, and he copied it almost verbatim from Santerna de Assecur. et Spons. Merc. part 4, n. 17.
27. 1 Emerg. 210-215. 2 Valin, 128, note.
28. Com. des Assur. tom. ii. 127.
29. Traité des Ass. n. 58.
30. It is admitted that such an insurance is not binding, if the underwriter was not informed of the prohibited trade. He must know that he was insuring a contraband or smuggling trade. Roccus, de Ass. n. 21, says, that such an insurance is not binding ignorante assecuratore; and Santerna, de Assecurat, part 4. n. 17, whom Roccus cites, uses the same words. Roccus copied from him; and yet those qualifying expressions, and which are so material to the question, do not appear in Mr. Ingersoll's translation of Roccus. I mention this without the least intended disparagement of that very useful translation, the general accuracy of which is undoubted. I would beg leave, however, respectfully to express my regret, that the many interesting references which are embodied in the text of Roccus, should have been detached and omitted. There is no author who less required a rasé edition, than Roccus. His two little treatises, De Navibus et Naulo and De Assecurationibus, are golden essays, composed with the comprehensive energy and brevity of Tacitus or Montesquieu, and they remind us of the admirable precision of Littleton and Humphreys, in an age when the biblomania has become a universal epidemic, and writers are every where, and on every subject, "piling up reluctant quarto upon solid folio," such authors as these I have alluded to, shine with increased luster.
31. Planche v. Fletcher, Doug. Rep. 238. Lever v. Fletcher, Hil. Vac. 1780, cited Park on Ins. 313, 6th edit.
32. Cases tempt. Hard. 183.
33. 5 Term Rep, 599.
34. Miller on Insurance, 23. Park on Insurance 313. Conde's Marshall on Insurance, vol. i. 60. Chitty on Commercia Law, vol. 1, 182-84.
35. Valin, tom. ii. 127. Planche v. Fletcher, Doug. Rep. 251. Roccus, de Ass. not. 21. Gardiner v. Smith, 1 Johns. Cas. 141. Richardson v. Maine Insurance Company, 6 Mass. Rep 102. Parker v. Jones, 13 ibid. 173. Andrews v. Essex Fire and Marine Insurance Company, 3 Mason's Rep. 18, 20. Archibald v. Mer. Ins. Company, 3 Pickering's Rep. 70.
36. In the case of La Jeune Eugenie, 2 Mason's Rep. 459, 460, a case that pleads the cause of humanity with admirable eloquence, the rule supporting smuggling voyages is admitted, but pretty plainly condemned.
37. See vol. i. 132. and the authorities there cited, and in addition thereto, see Seton & Co. v. Low, 1 Johns. Cas. 1. Barker v. Blakes, 9 East's Rep. 283. Pond v. Smith, 4 Conn. Rep. 297. Jubel v. Rhinelander, 2 Johns. Cas. 120, and affirmed on error, ibid. 487.
38. Phillips on Insurance, p. 39.
39. B. 3, c. 7. sec. 111.
40. 6 Mass. Rep. 102.
41. Parsons, Ch. J., 6 Mass. Rep. 114, 116. In this state, the underwriter is presumed to assume the risk of contraband of war, without a previous disclosure of the nature of the cargo; and on the ground of that presumption the contraband cargo need not be disclosed. Seton & Co. v. Low, 1 Johns. Cas. 1. Jubel v. Rhinelander, 2 ibid. 120, 487.
42. 1 Magens on Insurance. 1 R. Lord Mansfield, in 3 Burr. Rep. 1912. Webster v. De Tastet, 7 Term Rep. 157.
43. Emerigon tom. i. 236.
44. Boulay Paty, tom. iii. 482, 483.
45. Ord. de la Mar. du Fret., art. 15. Code de Commerce, art. 347. Cleirac, sur le Guidon, ch. 15. art. 1. 1 Emerig. 224. Ord. of Bilboa, ch. 22.
46. Tonge v. Watts, Str. Rep. 1251. Thompson v. Taylor, 6 Term Rep. 478. Forbes v. Aspinall, 13 East's Rep. 323. Davidson v. Willasey, 1 Maule & Selw. 313. Riley v. Hartford Insurance Company, 2 Conn. Rep. 368. Livingston v. Columbian Insurance Company, 3 Johns Rep. 49. Davy v. Hallett, 3 Caines' Rep' 16. Mr. Benecke, in his Treatise on the Principles of Indemnity, p. 57, says, that the practice of insuring ship and freight separately, is attended with many difficulties, and that the best, if not the only way to obviate them, and to put the owner, under all circumstances, in the same situation in which he would have been in a case of a safe arrival, would be to insure the ship and freight jointly, as one indivisible risk, in the same policy.
47. Grant v. Parkinson, cited in Park on Insurance, p. 354. 6th edit. Le Cras v. Hughes, ibid. 355. Craufurd v. Hunter, 8 Term Rep. 13. Barclay v. Cousins, 2 East's Rep. 544. Henrickson v. Mayetson, ibid. 549. note.
48. Loomis v. Shaw, 2 Johns. Cas. 36. Tom v. Smith, 3 Caine's Rep. 245. Abbott v. Sebor, 3 Johns. Cas. 39. Fosdick v. Norwich Marine Insurance Company, 3 Day's Rep. 108.
49. Benecke on Indemnity, p. 35.
50. Traité du Con. de Vente, n. 5. 6.
51. Roccus. n. 31. 96. Santerna, de Ass. and Spons. Merc. Tract part 3. n. 40, 41. Straccha, de Ass. Gloss, 6. n. 1. Ord. of Hamburg. 2 Magens, 213. Benecke, 35.
52. Hodgson v. Glover, 6 East's Rep. 316.
53. 1 Johns Rep. 433.
54. Abbott v. Sebor, 3 Johns. Cas. 39.
55. Pothier, des Ass, n. 43.
56. Lord Mansfield in Lewis v. Rucker, 2 Burr. Rep. 1171. Shaw v. Felton, 2 East's Rep. 109. Feise v. Aguillar, 3 Taunton's Rep. 506. Haigh v. De la Cour, 3 Campb. Rep. 319. Forbes v. Aspinall, 13 East's Rep. 323. Auberi v. Jacobs, W g' twick's Rip 118. Wilcott v. Eagle Ins. Co., 4 Pickering's Rep. 429. Marine Ins. Co. v. Hodgson. 6 Cranch's Rep 206. Condy's Marshall, 290, 291. Phillips on Insurance, 305-313. Valin's Com. tom. ii. 147. Pothier des Ass. n. 151, 159. Boulay Paty, tom. 3. 397, 398. M. Devincourt, in his Institutes de Droit Com. tom. ii, 345, 346 contends, that though the valuation be made without fraud, if there be palpable evidence of mistake in the valuation, the policy may be opened; and Valin, Pothier, and Emerigon, are of that opinion. But Boulay Paty thinks that the excess in the valuation by mistake, is not sufficient to open the policy; and there must be proof of actual fraud going to the destruction of the contract. Cours de Droit Com. tom. iii. 401. The Ordinance of the Marine, h. t. art. 8. and the Code de Commerce art. 336 make fraud the basis of opening the valuation. The Le Guidon, ch. 2. art. 13, and Valin, Com. tom. ii. 52, consider an over valuation of a moiety, or one third, or even of one fourth, to be evidence of fraud: but other text writers justly conclude that every case will depend upon its own circumstances, without being governed by any such rule. Mr. Benecke has referred to the various and discordant provisions of the principal commercial nations of Europe, concerning valuation, and they are generally held to be conclusive, unless shown to be fraudulent. Benecke on Indemnity, 151, 152.
57. Lord Mansfield in Le Cras v. Hughes, cited in 2 East's Rep. 113. Sewall. J., 7 Mass. Rep. 370.
58. Goldsmith v. Gillies, 4 Taunton's Rep. 803. Tunno v. Edward, 12 East's Rep. 488. Forbes v. Aspinall, 13 East's Rep. 323. Phillips on Insurance, 312-317. Benecke on Indemnity, p. 152, 153, 157.
59. Forbes v. Aspinall, 13 East's Rep. 323.
60. Parker, Ch. J., Haven v. Gray, 12 Mass. Rep. 71.
61. Benecke on Indemnity, 146.
62. 19 Geo. II. c. 37.
63. Walker v. Maitland, 5 Barnw. & Ald. 171.
64. 3 Bos. & Pull. 75. 5 ibid. 269
65. 8 Term Rep. 13.
66. 3 Term Rep. 693.
67. Cowp. Rep. 37.
68. 1 Carr & Payne, 613.
69. Juhel v. Church, 2 Johns. Cas. 333. Abbott v. Sebor, 3 ibid. 39. Clendening v. Church, 3 Caines' Rep. 141. Buchanan v. Ocean Insurance Company, 6 Cowen's Rep. 318.
70. Bunn v. Riker, 4 Johns. Rep. 426. Mount and Wardell v. Waites, 7 ibid. 434. Campbell v. Richardson, 10 ibid. 406.
71. Amory v. Gilman, 2 Mass. Rep. 1. Babcock v. Thompson, 3 Pickering's Rep 446. Pritchett v. Ins. Co. N. A., 3 Yeates' Rep. 464. Craig v. Murgatroyd, 4 ibid. 168.
72. Ord. de la Mar. liv. 3. tit. 6. Des Ass. art. 22. 1 Emerig. 264,Code de Commerce, art. 357. Ord. of Genoa, of Middleburg, of Rotterdam, of Amsterdam, of Hamburg and Stockholm, collected in 2 Magens, 65, 68, 88, 132, 229, 257. Roccus, de Assecut. n. 88. He refers to a decision of the Rota of Genoa, in which the principle is declared, si non adest risicum assecuratio non valet; nam non adest materia in qua forma posset fundari. Deciones Rotae Genuaæ, 55. n. 9.
73. Hastie v. De Peyster, 3 Caine's Rep. 190. Merry v. Prince, 2 Mass. Rep. 176.
74. Pothier, h. t. n. 153. Emerigon, tom. i. 247. 250.
75. Hastie v. De Peyster, ub. sup.
76. Ord. de la Mar. des Assurances, art. 20. Code de Commerce, art. 342.
77. Valin. h. t. Pothier, h. t. n. 35. 1 Emerig. 249. 3 Boulay Paty, 432.
78. Condy's Marshall, p. 145.
79. Santerna, de Ass. pars 3. n. 55, 56, 57, 58. Straccha, de Ass. introduc. n. 48, 49, who cites and adopts the opinion of Saterna; and both of them refer back to the civil law, and to the doctors who had commented upon it; and they, in their turn, are quoted and followed by Emerigon, tom. i. 253.
80. Pothier, Traité des Ass. No. 33. Valin. tom. ii, 66. Le Guidon, ch. 2. art. 20. 1 Emerig. 259. Boulay Paty, tom. iii. 440, 442.
81. Rogers v. Davis, and Davis v. Gilbert, decided at N P. by Lord Mansfield. Park on Ins. 374, 375, 6th edit. Lucan v. Jeff. Ins. Co., 6 Cowen's Rep. 635.
82. Newby v. Reed, 1 Blacks. Rep. 416.
83. 4 Dallas' Rep. 349, App. p. 32.
84. Code de Commerce, art. 359.
85. Malyne's Lex Mercatoria, 112. The African Company v. Bull, 1 Show. Rep. 132. Gilbert's Rep. 232.
86. Brown v. Hartford Insurance Company, 3 Day's Rep. 58. The same point was afterwards so ruled in Potter v. Marine Insurance Company, 2 Mason's Rep. 475.
87. Columbian Insurance Company v. Lynch, 11 Johns. Rep. 233. Rogers v. Davis, Park on Insurance, 374.
88. Ord. de la Mar. des Ass. art. 25. 2 Valin, 73, 74. Code de Commerce, n. 360. Pothier, h. t. n. 77.
89. Carter v. Boehm, 3 Burr. Rep. 1905. Pawson v. Watson, Cowp. Rep. 755. Fitzherbert v. Mather, 1 Term Rep. 12. Ratcliffe v. Shoolbreed, Park on Insurance, 249. 6th edit. MacDowall v. Fraser, Doug. Rep. 260. Shirley v. Wilkinson, Doug. Rep. 293, n. Bridges v. Hunter, 1 Maule & Selw. 15.
90. Marshall, in his Law of Insurance, p. 479, questions very strongly, the propriety of the decision in Carter v. Boehm, from which I have chiefly drawn the above principles. But whatever may be the opinion as to the application in that case of the doctrines stated, there is no question as to their solidity independent of the case, and they were confirmed by Lord Ellenborough in 4 East's Rep. 696, and recently by the Supreme Court of the United States in McLanahan v. The Universal Insurance Company, 1 Peters' Rep. 170.
91. Lord Mansfield, Cowp. Rep. 788. Baker v. Fletcher, Doug. Rep. 305. Hubbard v. Glover, 3 Camp. Rep. 312. Bowden v. Vaughan, 10 East's Rep. 415. Rice v. New England Marine Insurance Company, 4 Pickering's Rep. 439.
92. Barber v. Fletcher, ub. sup. Stackpole v. Simon, Park on Insurance, 582, 16th edit.
93. Brine v. Featherstone, 4 Taunt. Rep. 869. Lord Ellenborough, Forrester v. Pigou. 1 Maule & Selw. 9. Bell v. Carstairs, 3 Campb. Rep. 543.
94. Elting v. Scott, 2 Johns. Rep. 157.
95. Durell v. Bederley, 1 Holt's N P. Rep. 283.
96. 12 Johns. Rep. 513.
97. McLanahan v. The Universal Insurance Co., 1 Peters' Rep. 170.
98. Dacosta v. Scandrett, 2 P. Wms. 170. Seaman v. Fonereau, Str. 1183.
99. Lynch v. Hamilton, 3 Taunton's Rep. 37. Beckwaite v. Walgrove, cited ibid.
100. Freeland v. Glover, 6 Esp. N. P. 14. 7 East's Rep. 457. S. C. Kemble v. Bowne, 1 Caines' Rep. 75. Valiance v. Dewar, l Campb. N. P. Rep. 503.
101. Planche v. Fletcher, Doug. Rep. 251. Calbraith v. Gracie, 1 Condy's Marshall, 388. a. note. Delonguemere v. N.Y. Firemen Insurance Co., 10 Johns. Rep. 120. Kingston v. Knibbs, 1 Campb. N. P. Rep. 503. n. Vallance v. Dewar, ibid. 503. Stewart v. Bell, 5 Barnw. & Ald. 238. Seton v. Low, 1 Johns. Cas. 1.
102. Ely v. Ballet, 2 Caines' Rep. 57. Kohue v. Insurance Co. N. A., 6 Binney's Rep. 219. Hoyt v. Gilman, 8 Mass. Rep. 336.
103. Shoolbred v. Nutt, Park, 300. 6th edit. Haywood v. Rodgers, 4 East's Rep. 590. Walden v. N.Y. Fireman Insurance Co., 12 Johns. Rep. 128.
104. Pawson v. Watson, Cowp. Rep. 785. De Hahn v. Hartley, l Term Rep. 343. Suckley v. Delafield, 2 Caines' Rep. 222.
105. Emerigon, tom. ii. 148. Valin's Com, tom. ii. 95. Grieve v. Young, Miller on Insurance, 65. Watson v. Delafield, 2 Caines' Rep. 224. 2 Johns. Rep. 526. S. C. McLanahan v. Universal Insurance Co., 1 Peters' Rep. 170.
106. Gen. Int. Insurance Co. v. Ruggles, 12 Wheat. Rep. 408.
107. Emerigon, tom. i. 69.
108. Code de Commerce, art. 348.
109. Pardessus, tom. iii. 330. Boulay Paty, tom. iii. 510. The latter writer cites several decisions from the Journal de Jurisprudence Commerciale et Maritime de Marseille, made within the last ten years, by which contracts of insurance were declared void on this very ground of misrepresentation and concealment; and they do great credit to the exemplary justice of the French tribunals. Ibid. p. 514-527.
110. Law v. Hollingworth, 7 Term Rep. 160. Wilkie v. Geddes, 3 Dow's Rep. 57. Silva v. Low, 1 Johns. Cas. 134. Brown v. Girard, 4Yeate's Rep. 115.
111. Peters v. Phoenix Insurance Company, 3 Serg. & Rawle, 25.
112. The cases are well collected in Phillips on Insurance, p. 113-119.
113. Annen v. Woodman, 3 Taunt. Rep. 299. Sewall, J., 3 Mass. Rep. 347.
114. Annen v. Woodman, 3 Taunt. Rep. 299. Bond v. Nutt, Cowp. Rep. 601. Pawson v. Watson, ibid 785. Dehahn v. Hartley, 1 Term Rep. 343. Worsley v. Wood, 6 Term Rep. 710. Fowler V. ætna Fire Insurance Company, 6 Cowen's Rep. 673.
115. 2 Barnw. & Cress. 320.
116. McLanahan v. The Universal Insurance Company, 1 Peters' Rep. 170.
117. Blagge v. N.Y. Insurance Company, 1 Caines' Rep. 549. Baring v. Royal Ex. Ins. Co., 5 East's Rep. 99. Carrere v. Union Ins. Co., Cond. Marshall, 406. a. note. Calbraith v. Gracie, ibid. Phoenix Insurance Company v. Pratt, 2 Binn. Rep. 308. Wilcocks v. Union Insurance Company, ibid. 574. Coolidge v. N.Y. Firem. Insurance Company, 14 Johns, Rep. 308.
118. See vol. i. 144.
119. See vol. ii. 102.
120. Santerna de Ass. pars. 3. n. 72. Ord. de la Mar. tit. Ass: art. 20. Code, art. 350. Boulay Paty, tom. iv. 9.
121. Goix v. Knox, 1 Johns. Gas. 337. Simeon v. Bazett, 2 Maule & Selw. 94. Pothier, Traité de Ass. No. 65.
122. Page v. Thompson, cited in Park on Insurance, 109. n. 6th edit. Odlin v. Penn. Ins. Co., Condy's Marshall, p. 508. a. note. Delano v. Bedford Insurance Company, 10 Mass. Rep. 347. McBride v. Marine Insurance Company, 5 Johns. Rep. 299.
123. Code de Com, art. 369. 1 Emerigon, 541. Pothier, h. t. No. 59.
124. Conway v. Gray, 10 East's Rep. 536. Mennett v. Bonham, 15East's Rep. 477. Flindt v. Scott, ibid. 525.
125. Simeon v. Bazett, 2 Maule & Selw. 94.
126. Bazett v. Meyer, 5 Taunt. Rep. 824.
127. Francis v. Ocean Insurance Company, 6 Cowen's Rep. 104.
128. Hadkinson v. Robinson, 3 Bos. & Pull., 388. Lubback v. Rowcroft, 5 Esp. N.P. Rep. 50. Parkin v. Tunno, 11 East's Rep. 22. Richardson v. Maine Insurance Co., 6 Mass. Rep. 102.
129. Faudel v. Phoenix Insurance Co. 4 Serg. & Rawle, 29. Emerigon, tom. i. 542. Symonds v. Union Insurance Co., 4 Dallas' Rep. 417. Schmidt v. Union Insurance Co., 1 Johns. Rep. 249. Craig v. Union Insurance Co.. 6 Johns. Rep. 226. Barker v. Blakes, 9 East's Rep. 283. Olivera v. The Union Insurance Co., 3 Wheat. Rep. 183. Saltus v. Union Insurance Co., 15 Johns Rep. 523. Thompson v. Read, 12 Serg. & Rawle, 440.
130. 1 Emerigon, 507-512. 6 Johns. Rep 250.
131. Le Guidon, ch. 16. art. 5. Ord. of Wisbuy, art. 66. Ord. de la Mar. tit. Assurances, art. 10. Valin, tom. ii. 54. Pothier, h. t. n. 27. Emerigon, tom. i. 198.
132. Cours de Droit Com. tom. iii. 366, 368, 500.
133. Inst. de Droit Com. Francois, tom. ii. 345.
134. Esprit du Code de Commerce, tom. iv. 75.
135. tom. ii. 303.
136. Boulay Paty, tom. iii 446-506, inveighs vehemently against policies upon human life, as being gambling contracts of the most pernicious kind, and which ought to be left to their English neighbors. Istae conditiones sunt plenae tristissimi eventus, et possunt invitare ad delinquendum. Grivel, dec. 57. n. 28. Nothing can appear to an English or American lawyer more idle than the alarm of the French jurists, or more harmless than an insurance upon life, and which operates kindly and charitably in favor of dependent families. But though we do not adopt the logic of M. Boulay Paty, and do absolutely disclaim his construction of the language of the code, we cannot but admire the spirit with which he arraigns the legality of the royal ordinance, as being a violation of the constitutional charter under the empire of which they live. He denies the validity of the ordinance, on a ground that would be conclusive, if it were applicable. viz.; that a law cannot be repealed but by the concurrence of the three legislative estates of the realm; and Frenchmen, he says, have the happiness to live under a free and limited constitution. This is a sample of the just and temperate spirit of freedom now prevalent in continental Europe; and the observations do honor to the independent mind of the learned professor, who represents himself to be Conseiller de sa Majesté a la Cour Royale de Rennes.
137. 3 Burr. Rep, 1551. Ord. de la Mar. tit. Assurances, art. 47. Code de Commerce, art. 408.
138. Cited 3 Burr Rep. 1553.
139. 3 Burr. Rep. 1550.
140. Park on Ins. 160.
141. Park on Ins. 151. 25 Geo. III.
142. 7 Term Rep. 210.
143. 3 Bos. & Pull. 474.
144. 5 Maule & Selw. 447.
145. 1 Caines' Rep 196.
146. Neilson v. Columbia Insurance Company, 3 Caines' Rep. 108. Saltus v. Ocean Insurance Company, 14 Johns. Rep. 138. Marcardier v. Chesapeake Insurance Company, 8 Cranch's Rep. 39. Morean v. The U. S. Insurance Company, 1 Wheat. Rep. 219.
147. Mr. Benecke says, that the prevalent opinion now is, that if the memorandum articles are, by sea damage, rendered of no value, there is a total loss, though they exist in specie. And yet he puts, and leaves unanswered the question, whether, if a cargo of fish valued at 100 pounds, be entirely rotten, and can be sold for one shilling, for manure, is that deemed of any value? Benecke on Indemnity, 379.
148. Manning v. Newnham, Condy's Marshall, 586. Cologan v. London Assurance Company, 5 Maule & Selw. 447. Morean v. U. S. Insurance Company, 1 Wheat. Rep. 219. Maggrath v. Church, Caines' Rep. 214, and see Phillips on Insurance, p. 489, where all the cases on this, equally as on all other subjects which he discusses, are collected and stated with extraordinary diligence and accuracy, considering the complicated nature, and infinite variety, of the questions and decisions that at this day constitute the law of insurance. The French code, art. 409, exempts the insurer, under the clause free from average, from all partial losses, except in cases which authorize an abandonment; and in such cases, the insured has the option between the abandonment, and the claim for average loss.
149. 15 East's Rep. 559.
150. 5 Maule & Selw. 447.
151. 7 Taunt. Rep. 154.
152. 7 Johns. Rep. 527.
153. Emerig. 662-670.
154. Targa, ch. 52. not. 18. Casaregis, Disc. 47. n. 10.
155. 1 Wheat. Rep. 219, 227, note.
156. Ord. de la Mar. tit. Des Ass.,art. 31. Code de Commerce, art. 356.
157. Pothier, h. t. No. 61. Gregson v. Gilbert, Park on Insurance, 83.
158. In Straccha, Glossa. 22 casus fortuitus is defined to be accidens. quod per custodiam, curam et diligentiam mentis humanae evitari non potest. Santerna, de Ass. pars 3 n. 65. adds, ubi diligentissimus praecavisset, et providisset non dicitur proprie casus fortuitus.
159. Valin, tom. ii. 81. Pothier, des Ass. No. 66. 1 Emerigon, 390. Rhol v. Parr, 1 Esp. N.P. Rep. 444. Martin v. Salem Marine Insurance Company, 2 Mass. Rep. 420. Boyd v. Dubois, 3 Cambp. N. P. Rep. 133. Mr. Phillips, in his Treatise on Insurance, p. 252, very properly adds, that if the injury to the ship by worms arose from the loss by a sea peril, of the protection of the copper sheathing, the insurers may reasonably be charged.
160. Dale v. Hall, 1 Wils. Rep. 281. Hunter v. Potts, 4 Campb. N.P. 203. Aymar v. Castor, 6 Cowen's Rep. 266. Coccas, de Ass. n. 49. Cleirac, sur le Guidon, ch. 5. art. 8. and Emerigon, tom. i. 377, 378, who cites the Dig. 19. 2. 13. 6. and Casaregis, Straccha, Santerna, Kuricke, and Targa, may all be considered as maintaining the principle, that the owner, and not the insurer, is holden for an injury by rats; and the only case that I have met with directly to the contrary, is Garrigues v. Coxe, 1 Binn. Rep. 592. The opinion of Santerna, De Ass. pars 4. n. 31, 32. is not consistent with his own principles: for, while he admits, that an injury by rats cannot properly come under the name of casus fortuitus; magis est improvisus proveniens ex alterius culpa, quam fortuitus, he still concludes it to be a peril generally and absolutely assumed, when not controlled by usage.
161. Green v. Brown, Str. Rep. 1199. Brown v. Neilson, 1 Caines' Rep. 525. Gordon v. Bowne, 2 Johns. Rep. 150. Houstman v. Thornton, 1 Holt's N P. Rep. 242.
162. Code de Commerce, art. 375.
163. 1 Magens, 89, 90.
164. Boulay Paty, tom. iv. 246.
165. Walker v. Maitland, 5 Barnw. & Ald. 171.
166. Green Elmslie, Peake's N. P. Rep. 212.
167. Livie v. Jansen, 12 East's Rep. 648.
168. Schieffelin v. N.Y. Ins. Co., 9 Johns. Rep. 27.
169. Walden v. Le Roy, 2 Caines' Rep. 263. Barker v. Phoenix Ins. Co., 3 Johns. Rep 307. Padelford v. Bardman, 4 Mass. Rep. 548.
170. supra, p. 188.
171. See Phillips' Treatise on Insurance, p. 254-259. Pirates, rovers, thieves, are perils expressly mentioned in the policy; but in the early history of insurance, it was quite a vexed question, whether they were included among the general perils of the sea; and Santerna, and after him Straccha, have noticed the discussions, and compiled learning, on the point. It was conceded, that piracy was a casus fortuitus of the sea, but not theft. Saterna, de Ass. and Spons, pars 3. n. 61-65. Straccha, Glossa. 22, passim.
172. Nesbit v. Lushington, 4 Term Rep. 783. Brown v. Smith, 1 Dow's Rep. 349. Bondrett v. Hentigg, 1 Holt's N.P. Rep. 149.
173. Boulay Paty, tom. iv. 35.
174. Boulay Paty, tom. iv. 238.
175. Nesbit v. Lushington, ubi sup. Ord. of Hamburg, 2 Magens, 218.
176. Pothier, h. t. D. 53. Targa, ch. 56. Emerigon, tom. i. 434. Gordon v. Rimmington, 1 Campb. N.P. Rep. 123.
177. Busk v. The Royal Exchange Assurance Company, 2 Barnw. & Ald. 73.
178. 13 Johns. Rep. 451.
179. Boulay Paty, tom. iv. 23.
180. We are told by Roccus, De Ass. n. 89, that barratry is expressly excepted in the policies at Naples
181. Stamma v. Brown, Str. Rep. 1173. Vallejo v. Wheeler, Cowp. Rep. 143. Nutt v. Bourdieu, 1 Term Rep. 323. Haovelck v. Hancill, 3 Term Rep. 277. Moss v. Byrom, 6 Term Rep. 379. Phyn v. Royal Exchange Assurance Company, 7 Term Rep. 505. Earll v. Rowcroft, 8 East's Rep. 126. Hood v. Nesbit, 2 Dallas' Rep. 37. Kendricke v. Delafield, 2 Caines' Rep. 67. Cook v. Com Ins. Co., 11 Johns. Rep. 40. Grim v. The Phoenix Insurance Company, 13 Johns. Rep. 451. Wilcocks v. Union Insurance Company, 2 Binn. Rep. 574.
182. Dixon v. Reid, 5 Barnw. & Ald. 597.
183. Lockyer v. Offley, 1 Term Rep. 252.
184. 8 Mass. Rep. 308
185. 5 Barwn. & Ald. 171.
186. 3 Mason's Rep. 26.
187. Garrigues v. Coxe, 1 Binn. Rep. 592. In Treadwell v. the Union Insurance Company, 6 Cowen's Rep. 270, the court said, that a policy at and from North Carolina to New York, did not attach, at least as to seaworthiness, until the vessel had passed the boundary line of the state, though the voyage had commenced when the vessel sailed with the cargo from Perquimions' river, at or near the town of Hertford in that state. That was giving too narrow a construction to the words at and from; for though it has been justly held, that the warranty of seaworthiness has not the same extended application in as out of port, while the vessel is dismantled, and undergoing necessary repairs, (Smith v. Surridge, 4 Esp. N. P. Rep. 25.) yet, to every reasonable extent, such a policy covers the risk of the vessel while within port, or within the line of the state.
188. Motteaux v. The London Assurance Company, 1 Atk. Rep. 548. Condy's Marshall, 261. 2 Caines' Cases in Error, 172. In Parmeter v. Cousins, 2 Campb. N. P. Rep. 235, the ship was insured at and from St. Michael to England, and the ship arriving there in distress, was blown out to sea and destroyed after lying at anchor above twenty-four hours, and Lord Ellenborough ruled, that the insurer was not liable, because the vessel had not once been at the place in good safety, and the policy on the homeward voyage had not attached. It is surprising, that the construction of the policy at and from, should still remain to be settled. The words ought long since to have been defined and fixed with mathematical precision. Lord Hardwicke says, the policy attaches from the first arrival. Ch. J. Tilghman says, it attaches as soon as the vessel has been moored twenty-four hours. Lord Ellenborough requires the vessel to be at the place in good safety, whether it takes place within, or not until above twenty-four hours after she has arrived and anchored.
189. Lockyer v. Offley, 1 Term Rep. 252. Meretony v. Dunlope, cited in 1 Term Rep. 260. In Peters v. The Phenix Insurance Company, 3 Serg. & Rawle, 25, the court overruled this case of Meretony v. Dunlope, and held, that where a vessel received her death wound during the voyage, or suffered damage above 50 percent she might be abandoned, though she had been moored twenty-four hours in safety in the port of destination, and that it was, of no moment at what time the loss was ascertained, if it occurred during the voyage.
190. Waples v. Eames, Str. 1243.
191. Leigh v. Mather, 1 Esp. N.P. Rep. 412.
192. 2 Emerigon, 72.
193. Salvador v. Hopkins, 3 Burr. Rep. 1707. Gregory v. Christie, cited in Condy's Marshall, 273. Farquharson v. Hunter, Park on Insurance, 67.
194. Boulay Paty, tom. iii. 419. Code de Commerce, art. 328
195. Boulay Paty. tom. iii. 427.
196. Tiernay v. Etherington, cited in 1 Burr. Rep. 348. Gardinier v. Smith, 1 Johns. Cas. 141.
197. Rucker v. London Assurance Co., cited 2 Bos. & Pull. 432, notis. Hurry v. Royal Exchange Assurance Co., 2 Bos. & Pull. 430. Matthie v. Potts, 3 ibid. 23. Strong v. Natally, 4 ibid. 16.
198. Columbian Ins. Co. v. Catlett, 12 Wheat. Rep. 383.
199. Tonge v. Watts, Str. Rep. 1251.
200. Thompson v. Taylor, 6 Term Rep. 478. Mackenzie v. Shedden, 2 Camp. N.P. Rep. 431. Horncastle v. Stuart, 7 East's Rep. 400. Truscott v. Christie, 2 Brod. & Bing. 320. Riley v. Hartford Ins. Co., 2 Conn. Rep. 373. Hart v. Delaware Ins Co., Condy's.Marshall, 281. n
201. Montgomery v. Eggington, 3 Term Rep. 362. Davidson v. Willasey, 1 Maule & Selw. 313. Livingston v. Columbian Ins. Co., 3 Johns. Rep. 49. De Longuemere v. The Phoenix Ins. Co., Johns. Rep. 127. Same v. Fire Ins. Co., 10 ibid. 201.
202. 10 Johns. Rep. 201.
203. 13 East's Rep. 323
204. Roccus, de Ass. n. 20. 52. Emerigon, tom. ii 28, 59, 60. 9 Mass. Rep. 447. Condy's Marshall, p. 184, 185. Phillips on Insurance, p. 161.
205. Fox v. Black, and Townson v. Guyon, cited in Beawes' vol. i. 306, 9 Mass. Rep. 449.
206. Elliott v. Wilson, 7 Bro. P. C. 459.
207. 6 East's Rep. 54.
208. 1 Peters' Adm. Rep. 40, 64. 2 ibid. 378.
209. 2 Cranch's Rep. 257, note.
210. Raine v. Bell, 9 East's Rep. 195. Cormack v. Gladstone, 11 ibid. 347. Laroche v. Oswin, 12 ibid. 131. Urquhart v. Barnard, 1 Taunt Rep. 450. Kane v. Columbian Insurance Company, 2 Johns. Rep 264. Hughes v. Union Insurance Company, 3 Wheat. Rep. 159. Thorndike v. Boardman, 4 Pickering's Rep. 471. This liberal construction is also given to the liberty to touch, and make port freely, contained in the French policies, and if new goods be taken in at such stopping port, the policy on cargo attaches on them as a substitute for the others. If the policy be on cargo to such an amount, and the ship discharges part of her cargo at the stopping port, but reserves sufficient on board as aliment for the policy, and pursues the voyage, the policy attaches on the residuum of the cargo. Emerigon, tom. ii. c. 13. sec. 8. Boulay Paty, Cours de Droit Com. t. 4. 140-147.
211. Beatson v. Haworth, 6 Term Rep. 531. Marsden v. Reid, 3 East's Rep. 572. Clason v. Simmonds, cited in 6 Term Rep. 533. Kane v. Col. Ins. Co., 2 Johns. Rep. 264. Metcalf v. Parry, 4 Campb. N. P.Rep. 123.
212. Straccha, Gloss. 14. Casaregis, Disc. 67. n. 23. and Disc. 134. Valin, tom. ii. 78, 79. Emerigon, tom. ii. ch. 13. sec. 6. and 8, passim. Gardiner v. Senhouse, 3 Taunt. Rep. 16. Langhorn v. Allnutt, 4 ibid. 511. Hammond v. Reid, 4 Barnw. & Ald. 72. Lolly v. Whitmore, 5 ibid. 45. Bottomley v. Bovill, 5 Barnw. & Cress. 210.
213. Jarratt v. Ward, 1 Campb.N P. 263. Smith v. Surridge, 4 Esp. N.P. Rep. 25. Oliver v. Maryland Insurance Company, 7 Cranch's Rep. 487. 9 Mass. Rep. 447. Earle v. Shaw, 1 Johns. Cas. 317.
214. Forster v. Wilmer, Str. Rep. 1249. Lord Mansfield, in Doug. Rep. 18, 365. 3 Cranch's Rep. 357. 7 Mass. Rep. 352.
215. Doug Rep. 284.
216. Traité des Ass. tom. ii. 62.
217. Parr v. Anderson, 6 East's Rep. 202.
218. 2 Mason's Rep. 230.
219. Lawrence v. Sidebotham, 6 East's Rep. 45.
220. Ward v. Wood, 13 Mass. Rep. 539.
221. Syers v. Bridge, Doug. Rep. 509.
222. Scott v. Thompson, 4 Bos. & Pull. 181. Robinson v. Marine Insurance Company, 2 Johns. Rep. 89.
223. Condy's Marshall, 203. b. to 213. Phillips on Insurance, ch. 12. p. 179-224. The latter work has collected and digested all the English and American cases on this very diffusive head of deviation, and to which I must refer for a more particular knowledge of the distinctions and exceptions with which the books abound.
224. Wooldridge v. Boydell, Doug. Rep. 16. Kewley v. Ryan, 2 Ft. Blacks. Rep. 343. Middlewood v. Blakes, 7 Term Rep. 162. Silva v. Low, 1 Johns. Cas. 184. Henshaw v. The Marine Insurance Company, 2 Caines' Rep. 273. Marine Insurance Company v. Tucker, 5 Cranch's Rep. 357. Boulay Paty, tom. iv. p. 56, 57.
225. Lawrence v. Ocean Insurance Company, 11 Johns. Rep. 241. S. C. 14 ibid. 46.
226. Johnson, J. in 3 Cranch's Rep. 385.
227. The foreign jurists distinguish between the voyage insured, and the voyage of the ship. Independenter se habet assecuratio a viaggio navis. If a ship sails on a voyage from Saint Malo to Toulon, and is insured from Saint Malo to Cadiz, the latter is the voyage insured, but the former is the voyage of the ship, and the voyage insured is known by its two extremes, or the terminus a quo, and the terminus ad quem. Casaregis, Disc. 67 e. 5 and 31. Boulay Paty, tom. iii. 416, 417.
228. Gross v. Withers, 2 Burr. Rep. 683. Hamilton v. Mendes, ibid. 1198. Mills v. Fletcher, Doug. Rep. 231. Manning v. Newnham, Parks on Insurance, 221. Cazalet v. St. Barbe, 1 Term Rep. 187. Mr. Benecke justly observes, that the principles in some of these cases by Lord Mansfield, were too generally expressed, to serve as a basis of the law of abandonment, and that it was from actual decisions, and not from such general observations, that the law must be collected. Benecke on Indemnity, 348.
229. Ord. of Hamburgh, tit. 11. The Insurance Companies of Philadelphia, in 1807, agreed that their policies should provide against abandonment in cases of capture or detention, until sixty days after advice received of the act, unless the property be sooner condemned; and in cases of embargo, until after four calendar months; and against any abandonment on account of seizure or detention in port, under French decrees, or on account of the port of detention being blockaded.
230. Mitchell v. Edie, 1 Term Rep. 608. Martin v. Crokatt, 14 East's Rep. 465. Hunt v. Royal Exchange Insurance Co., 5 Maule & Selw. 47.
231. Hudson v. Harrison, 3 Brod. & Bing. 97.
232. This was also the opinion of Casaregis, Disc. 3. n. 23. Disc. 70. n. 5. and 33.
233. Fontaine v. Phenix Insurance Co., 11 Johns. Rep. 293. Robert son v. Caruthers, 2 Starkie's N. P. Rep. 571.
234. Emerigon, tom. ii. 194-197. Pothier, des Ass. n. 131, 138. Gardiner v. Smith, 1 Johns. Cas. 141. Abbott v. Broome, 1 Caine's Rep. 292. Union Insurance Co. v. Robinson, 2 Caine's Rep. 280. Lee v. Boardman, 3 Mass. Rep. 238. Marine Insurance Co. v. Tucker, 3 Cranch's Rep. 357. Ches. Insurance Co. v. Stark, 6 Cranch's Rep. 268. Peele v. Merchant's Insurance Co., 3 Mason's Rep. 27.
235. 3 Mason's Rep. 27.
236. 4 Maule & Selw. 576.
237. Ord. de la Mar. 46.
238. Code de Commerce, art 369.
239. There are two kinds of shipwreck: (1.) when the vessel sinks, or is dashed to pieces. (2.) When she is stranded, which is, when she grounds, and fills with water. The latter may terminate in shipwreck, or may not, and it depends on circumstances whether it will or will not justify an abandonment. The shades of difference between shipwreck of the two kinds, and wreck absolute and partial, and stranding with and without wreck, are minutely stated by the French civilians. See Boulay Paty, tom. iv. p. 12-14, 230, 231, and Ord. de la Mar. h. t. art. 46, which distinguishes between shipwreck, wreck, and stranding.
Innavigability, in the sense of insurance law, is when the vessel, by a peril of the sea, ceases to be navigable by irremediable misfortune: in eum Statum, qui providentia humana reparari non potest. The ship is relatively innavigable, when it will require almost as much time and expense to repair her, as to build a new one. This is the doctrine of Targa and Emerigon, and of the judicial decisions which the latter reports. (Targa, ch. 54. p. 239, and ch. 60. p. 256. Emerigon, tom. i. 591-598.) Innavigability, when duly established, constitutes a total loss, and a right to abandon. When it is established by an official survey and report, (procès verbaux,) it creates a presumptio juris of innavigability, by a peril of the sea, against the insurer, and which he may contradict, but without such a survey which is required by the French ordinances, the presumption is juris et de jure against the insured, that the innavigability proceeded from inherent defects. Emerigon, tom. i. 577.
240. Wood v. L. and K. Ins. Co., 6 Mass. Rep. 479. Peele v. Merchants' Ins. Co., 3 Mason's Rep. 42, 43, 44.
241. Bainbridge v. Neilson, 10 East's Rep. 329. Patterson v. Ritchie, 4 Maule & Selw. 394.
242. 2 Dow's Rep. 474.
243. Church v. Bedient, 1 Caines' Cases in Error, 21. Depau v. Ocean Ins. Co., 5 Cowen's Rep. 63. Dutilh v. Gatliff, 4 Dallas' Rep. 446. Rhinelander v. Ins. Co. of Pennsylvania, 4 Cranch's Rep. 29. Marshall v. Delaware Ins. Co., ibid. 202. Lee v. Boardman, 3 Mass. Rep. 238. Wood v. L. and K. Ins. Co., 6 ibid. 479. Adams v. Delaware Ins. Co., 3 Binn. Rep. 287. Peele v. The Merchants' Ins. Co., 3 Mason's Rep. 27.
244. Story, J., 3 Mason's Rep. 37.
245. Smith v. Robertson, 2 Dow's Rep. 474. In the opinion in Peele v. The Merchants' Insurance Company, it was observed by the court, in reference to the definitive nature of an abandonment, when once duly made, that it was "no slight recommendation of the American doctrine, that it stands approved by the cautious learning of Valin, the moral perspicacity of Pothier, and the practical and sagacious judgment of Emerigon." But an observation of Valin, on the place referred to, makes me doubt whether he merited the eulogy in respect to that point; for he says, that though there should be information of a loss justifying the abandonment, yet, if the ship should be repaired by the care, and at the expense of the insurer, he thinks the insurer would have a right to compel the insured to receive back the vessel and cargo, notwithstanding the abandonment, and put up with the payment of a partial loss. Valin's Com. tom. ii. 144. or lib. 3. tit. 6. art 60. That opinion of Valin I take to be heresy in American law, and it is pointedly condemned by Emerigon, tom. i. 195.
246. Anderson v. Wallis, 2 Maule & Selw. 240. Everth v. Smith, ibid. 278.
247. 6 Taunt. Rep. 383.
248. Anderson v. Wallis, 2 Maule & Selw. 240. Hunt v. The Royal Exchange Assurance Company, 5 Maule & Selw. 47. Wilson v. The Royal Exchange Assurance Company, 2 Campb. N. P. Rep. 624.
249. 3 Brod. & Bing, 97.
250. Wilies' Rep. 641
251. 5 Bro. P. C. 137-142.
252. 1 Dow's Rep. 359. 2 Dow's Rep. 477.
253. 1 Johns. Cas. 309.
254. 3 Bos. & Pull. 388.
255. 2 Maule & Selw. 293.
256. Alexander v. Baltimore Insurance Company, 4 Cranch's Rep. 370. See also, 1 Mason's Rep. 343.
257. Condy's Marshall, 585, 586.
258. Ch. 7. art. 1 and 9.
259. Valin, Com. tom. ii. 101. Pothier, des Ass. n. 121. Gross v. Withers, 2 Burr. Rep. 683. Gardiner v. Smith, 1 Johns Cas. 141. Dickey v. N.Y. Ins. Co., 4 Cowen's Rep. 222. Marcardia v. The Chesapeake Ins. Co., 9 Cranch's Rep. 39. Ludlow v. Columbian Ins. Co., 1 Johns. Rep. 335. Peters v. Phenix Ins. Co., 3 Serg. & Rawle, 25. Wood v. L. and K. Ins. Co., 6 Mass. Rep. 479. Story, J., 3 Mason's Rep. 69.
260. Guerlain v. The Columb. Ins. Co., 7 Johns. Rep. 527. Deidericks v. Com. Ins. Co., 10 ibid 234. Condy's Marshall, 600. Phillips on Insurance, 434, 435. Valin, tom. ii. 108. Pothier, h. t. No. 121, 131, 132. Emerig. tom. ii. 214. Le Guidon, ch. 1. sec 8, 9.
261. Center v. American Ins. Co., 7 Cowen's Rep. 564.
262. 3.Mason's Rip. 70-78.
263. Johnson v. Shedden, 2 East's Rep. 681.
264. Dupuy v. The U. Ins. Co., 3 Johns. Cas. 182. Contra, Smith v. Bell, 2 Caines' Cases in Error, 153. Coolidge v. Gloucester Ins. Co., 16 Mass. Rep. 341. Peele v. Marine Ins. Co., 3 Mason's Rep. 76, 77. The extent of loss, in the case of a ship, says Boulay Paty, is estimated by a comparison of the value in the policy with the value at the place of loss, and not with the amount of the expense requisite to repair. Cours de Droit Com. tom. iv. 252.
265. Saidler & Craig v. Church, cited in 2 Caines' Rep. 289. United Ins. Co. v. Robinson, 2 Caines' Rep. 280. Jumel v. Marine Ins. Co., 7 Johns. Rep. 412. Willard v. Dorr, 3 Mason's Rep. 161. Boulay Paty, tom. iv. 309,310.
266. United Insurance Co. v. Lenox, 1 Johns. Cas. 377. 2 Ibid. 443. Davy v. Hallet, 3 Caines' Rep. 20.
267. 3 Binney's Rep. 437.
268. 5 Maule & Selw. 79. S. C. affirmed on error, 2 Brod. & Bing. 379.
269. Mr. Benecke, Principles of Indemnity, p. 408. after giving an interesting history of the progress of the question,, concludes. that the insurer on the freight, in case of an abandonment of that also. will still have a personal claim on the owner for the freight subsequently earned, and which, but for the abandonment, would have belonged to him. Though the decision of Lenox and The United Insurance Co., in this state, has been in print for eighteen or twenty years, it seems to have been entirely unknown to the English Courts, and to Mr. Benecke in 1824, though he has, in the course of his word, ransacked the local laws and ordinances of most of the petty as well as great commercial states and cities of Europe. 1 should think it was almost time for Englishmen to find out that there is, in point of fact, a very cultivated system of commercial jurisprudence actually existing and in operation on this side of the Atlantic.
270. Com. liv. 3. tit. 6. des Assurances, art. 15.
271. Emerigon, tom. ii. 217-227.
272. Code de Commerce, art. 386.
273. Boulay Paty, tom. iv. 397-417.
274. Treatise on the Principles of Indemnity in Marine Insurance, ch. 1.
275. Snell v. Delaware Ins. Co., 4 Dallas' Rep. 430. Carson v. Marine Ins. Co., Wharton's Dig. 340. h. t. n. 205.
276. 1 Johns. Cas. 120.
277. 7 Johns. Rep. 343.
278. 12 East's Rep. 639.
279. This is admitted in the French law to afford all the indemnity that was stipulated by the policy. Boulay Paty, tom. iv. p.41, 42.
280. Lewis v. Rucker, 2 Burr. Rep. 1167. Johnson v. Sheddon, 2 East's Rep. 581. Usher v. Noble, 12 East's Rep. 639. Benecke on Indemnity, 426.
281. Benecke on Indemnity, 17-26.
282. Molloy, b. 2. ch. 6 sec. 16. 7 Mass. Rep. 370. 5 Cowen's Rep. 63. Benecke on Indemnity, 331.
283. 1 Emerigon, 659. Ord. de la Mar. tit. Du Jet. art. 6.
284. Benecke on Indemnity, p. 426, 427.
285. Ibid, p. 436. Mr. Benecke, in ch. 9, has gone into particular calculations on the subject of the adjustment of particular average, on every kind of expense or damage short of a total loss, and applied his principles to almost all the variety of cases that can arise, and to his lucid explanations I must refer the student for a more practical knowledge of the subject.
286. Emerigon, tom. i. 429-433. Code de Commerce, No. 391. 393.
287. Mumford v. The Commercial Ins. Co., 5 Johns. Rep. 262. Searle v. Scovell, 4 Johns. Ch. Rep. 218. Dodge v. The Marine Ins. Co., 17 Mass. Rep. 471.
288. Phillips on Insurance, p. 246, 247. Miller on Insurance, 132. 2Valin, 14, 80, 83. Emerigon, vol. i. 391.
289. Dow v. Smith, 1 Caines' Rep. 32. Shepherd v. Chewter, 1 Campb.N. P. Rep. 274. Steel v. Lacy, 3 Taunt. Rep. 286.
290. Dunham v. Com. Ins. Co., 11 Johns. Rep. 315. Byrnes v. National Ins. Co., 1 Cowens' Rep 265.
291 1 Caines' Rep. 284. 450. 7 Johns. Rep. 62. 424, 433. 4 Taunt. Rep. 367. Emerigon has taken notice of this stipulation in the English policies, by means of which the insurer may become chargeable beyond the amount of his subscription; and there is the same stipulation, by which they may be so charged, in the policies, at Antwerp, Bouen, Nantes and Bordeaux; and there is the same clause in the formula given by Loccenius. In the form used at Marseilles there is no such clause, and without such clause, and as a general rule the insurer is not chargeable beyond his subscription. But with such a special clause, Valin and Emerigon both agree, that the expense must be borne by the insurer, though it go beyond the effects recovered. This, however, is denied by Boulay Paty, who insists that the sum subscribed limits all claim upon the insurer. 1 Emerigon, 484. 2 Emerigon, 202-213. Valin's Com. tom. ii. 99. Boulay Paty, tom. iv. 312-313.
292. Kermet v. la Compagnie Royal d'Assurance, reported in the Journal de Cassation, 1123., and quoted at large in Boulay Paty, tom. iv. 519-532. And see also ibid. p. 272-276.
293. Stevenson v. Snow, 3 Burr. Rep. 1237. Tyrie v. Fletcher, Cowp. 666. 8 Term Rep. 156, arg. Holmes v. U. Ins. Co., 2 Johns. Cas. 329. Taylor v. Summer, 4 Mass. Rep. 56.
294. Emerigon, tom. ii 154. Phillips on Insurance, 503. Code de Commerce, art. 349. Hendricks v. Com. Ins. Co., 8 Johns. Rep. 1.
295. Tyler v. Hern, Park on Insurance, 285. Chapman v. Fraser, Marshall on Insurance, 652.
296. March v. Abel, 3 Bos. & Pull. 35. Van Dyck v. Hewitt, 1 East's Rep. 96.
297. Stevenson v. Snow, 3 Burr. Rep. 1237. Long v. Allen, Marshall on Insurance, 660. Donath v. Ins. Co. of N. A., 4 Dallas's Rep. 463. Ogden v. Firem. Ins. Co., 12 Johns. Rep. 114. Phillips on Insurance, 503-510.
298. Code de Commerce, art. 356.
299. Cours de Droit Commercial Maritime, tom. iv. 98, 99.
300. Bynkershoek and Emerigon both agree, that the contract of insurance was not to be found in the Roman law, though some traces of it have been supposed to be perceived in the Roman history. Bynck. Quaest. J. Pub. lib. 1. c. 11. Emerigon, des Ass. Pref.
301. The allusion to marine insurance in art. 66. of the Laws of Wisbuy, is so obscure or equivocal, that the most celebrated jurists have differed in opinion, as to the origin of the contract. Cleirac, in his commentary on that article of the Laws of Wisbuy, applies it directly to insurances; and he had studied that compilation thoroughly, for he translated it into French, from the old German, or Tudesque language, in which the code had been preserved too his day. In the collection of Sea Laws, published at London under Queen Anne, the article, as translated, applies to marine insurance. Emerigon, also, in the preface to his treatise, gives that construction to the article, and he and Cleirac are great authorities on the point. On the other hand, Emerigon admits that Stypmannus, Gibalinus, Ansaldus and Casaregis, would not allow that the use of insurances was introduced into commerce until towards the fifteenth century; and Valin intimates, that the contract of insurance came from the Italians, and passed from them to the Spaniards, Dutch, and other commercial nations. Malynes, as early as 1622, traced the practice of insurance from Claudius Caesar to the inhabitants of Olerun, and then to Antwerp and London. Cleirac's les Us et Coutumes de la Mer, p. 155. Malynes' Lex Mercatoria, part 1, 105. Emerigon, Traité des Ass. Pref. Valin's Com. tom. ii. 27. Bynkershoek said, he had no evidence that the contract of insurance was in use in Holland in the fifteenth century, though he found it to have been in established use by the middle of the following century. Quaest. J. Priv. lib. 4 ch. 1.
302. The French lawyers have described the contract of insurance in strong and eloquent language. C'est une espece de jeu, said Emerigon, truly and gravely; qui exige beaucoup de prudence de la part de ceux qui s'y adonnent. Il faut faire l'analyse des hazards, et posseder la science du calcul des probabilities; prévoir les ecueils de la mer, et ceux de la mauvaise foi; ne pas perdre de vue les cas insolites et extraordinaires; combiner le tout, le comparer avec le taux des primes, et juger quel sera le resulta de l'ensemble. But the French counselors of state, Messrs. Corvetto. Begouen and Maret, in their report to the legislative body, on the 8th September, 1807, declared, that Ce beau contrat est le noble produit du génie de l'homme, et le premier garant du commerce maritime. I1 a consulté les saisons; il a po té ses regards sur la mer; il a interrogé ce terrible elément: il en a juge l'inconstance: il en a presenti les orages: il a epie la politique: il a reconnu les portes et les cotes des deux mondes: il a tout soumis a des calculs savans, a des theories approximatives, et il a dit au commercant habile: an navigateur intrepide: certes il y a des desastres sur lesquels l'humanite ne peut que gemir: mais quint a votre fortune allez. fransissez les mers, deployez votre activite el votre industrie; Je me charge de vos risques.
303. Those decisions, under the title of Decisiones Rotae Genuae de Mercatura, are contained in the voluminous compilation, which includes the works of Santerna and of Straccha, and was published at Amsterdam in 1669. They amount to 215 decisions; and many of them relate to insurance questions, and they settled principles which govern at this day.
304. Cleirac's pref. to Le Guidon.
305. The treatise of Santerna, a Portuguese lawyer, De Assecurationibus st Sponsionibus Mercatorum, and the larger and later work of Straccha of Ancona, De Assecurationibus, equally abound in references throughout the body of their works, to the civil law and the early civilians. The latter is essentially the groundwork of the treatises of Roccus, and yet both Straccha and Santerna are rudely termed, by Bynkershoek, semibarbarous writers, though they were familiar not only with the Roman law, but with the Roman classics. Emerigon and Valin make free use of the works of these authors, as they do also of the commercial discourses of Casaregis, who is, without contradiction, as Valin says, (Com. sur Ord. Pref.) the best of all the writers whom he had enumerated, and he had already mentioned Cleirac, Straccha, Stypmannus, Loccenius, Kuricke, Peckius, Vinnius, and Weysten. Casaregis has also received the highest and warmest eulogy from the learned and eloquent author of the article No. 15, in the North American Review, vol. 7. p. 323.
306. 6 Coke's Rep. 47. b.
307. The treatise of Mr. Benecke was published in 1824, and yet in Jacobsen's work on the Laws of the Sea, published at Altona, in 1814, he speaks of this treatise, by its title, as being in preparation by a master hand.