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shall only say in addition, that it has been settled, by the court of king's bench, that it is not every single man of war, which chooses to take a merchant ship under its protection, that will constitute such a convoy as a warranty means; but it must be a naval force under the command of a person appointed by the government of the country to which they be long. Hibbert v. Pigou, B. R. Easter, 23 Geo. III. 1783.

From the same case, we likewise collect, that a convoy appointed by the admiral commanding in chief upon a station abroad, is a convoy appointed by government.

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Having seen what shall be deemed a convoy, let us proceed to consider what shall be a departure with convoy, within the meaning of a warranty to depart with convoy. The rule on this point is short and clear, that such a warranty implies, the ship shall go with convoy from the usual place of rendezvous, at which the ships have been accustomed to assemble; at Spithead, or the Downs, for the port of London; and Blue fields, for all the ports in Jamaica. And, from the particular port to such usual place of convoy, the ship is protected by the policy.-Lethulier's case, 2 Salk. 443, and Gordon v. Morley, 2 Stra. 1265.

Although the words commonly used are," to depart with convoy," or, "to sail with convoy," yet, they extend to sailing with convoy throughout the whole of the voyage, as much as if those words were inserted. If, therefore, the convoy is only to go part of the way, that is not a compliance with the warranty; and the assurer is discharged from bis engagements.-Lilly v. Ewer, Doug. 72.

But, although it has been thus settled, that a ship must depart with convoy for the whole of the voyage; yet an unforeseen separation is an accident to which the underwriter is liable.-Jeffery v. Legendre, 3 Lev. 320.

Even where the ship has, by tempestuous weather, been prevented from joining the convoy at all, at least, from receiving the orders of the commander of the ships of war, if she do every thing in her power to effect it, it shall be deemed a sailing with convoy, within the terms of the warranty.-Victorin v. Cleeve, 2 Stra. 1250.

But, if there be an opportunity of convoy; if the convoy throw out repeated signals to join, and by the negligence and delay of the captain of the assured ship, the opportunity be lost, the warranty to depart with convoy is not complied with, and the underwriter is discharged.-Taylor v. Woodness, Sittings at Guildhall, Hilary Vac. 4 Geo. III.

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Although a ship must not voluntarily depart from convoy during the voyage, yet this species of warranty must always be construed with reference to the usage of trade, and to the orders of government. For, if the course upon a particular voyage has been to have a relay of convoy, protecting the trade from one port to another; or if government appoint a convoy to escort the trade of a place to a given latitude and no farther; and there be no other convoy on that station; a vessel taking the advantage of such a convoy, has complied with the warranty to sail with couvoy, for the voyage.-Smith v. Readshaw, London Sitt. after East. 1781. De Garey v. Clagget, London Sitt. after Mich. 1795.-De Guino v. Bewick, C. P. Mich. 36 Geo. III.

It has been questioned whether it was necessary to have sailing instructions from the commander of the convoy. Mr. Justice Buller, in the case of Webb v. Thompson, (1 Bos. and Pull. 5.) said, "In point of law, the general proposition is, that sailing instructions are neces.

sary. But if the captain, from any misfortune, from stress of weather, or other circumstances, be absolutely prevented from obtaining his in structions, still it is a departure with convoy; but then he must take the earliest opportunity to obtain them."

The third species of warranty is that of neutrality, or that the ship or goods assured are neutral property. If the ship and property are neutral at the time when the risk commences, this is a sufficient com pliance with a warrant of neutral property: because it is impossible for the assured to be answerable for the consequences of a war break ing out during the voyage. Eden v. Parkison, Dougl. 705. And this doctrine has been since confirmed, in the case of Tyson v. Gurney, 3 T. R. 477.

However, if property belonging to a neutral country be assured in one of two belligerent powers, and be condemned by the other belligerent power, on capture, as belonging to the country in which it is assured, such condemnation is valid; since this sentence is to be re garded as a proof that the warranty of the property being neutral is not complied with.-Oddy v. Bovill, T. R. Trin. 42 Geo. III.

If a warranty of property belonging to any neutral power be ren dered void by any act of the master, &c. of a ship, after the commencement of the voyage, and the ship be in consequence condenined by a belligerent power, the assured cannot recover.-Garrels v. Kensington, 8 T. R. 230.

19. RETURN OF PREMIUM.

The next object of our inquiry is, in what cases, and under what circumstances, there shall be a return of premium ?

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The principle upon which the whole of this doctrine depends, is simple and plain. The risk of peril is the consideration for which the premium is to be paid: if the risk be not run, the consideration for the premium fails; and equity implies a condition, that the assurer shall not receive the price for running a risk, if, in fact, he runs none. 3 Burr. 1240.

Accordingly, in an action brought by the plaintiff for £5, received by the defendant to the plaintiff's use, where it appeared in evidence, that one Barkdale had made a policy of assurance upon account for £5 premium, in the plaintiff's name, and that he had paid the same premium to the defendant, and that Barkdale had no goods then on board, and so the policy was void: Lord Chief Justice Holt said, "The money is not only to be returned by the custom, but the policy is made originally void, the party for whose use it was made having no goods on board; so that, by this discovery, the money was received without any reason, occasion, or consideration, and conse quently it was received, originally, to the plaintiff's use. And so judgment was given for the plaintiff.-Martin v. Sitwell, 1 Shower,

156.

Premiums on illegal assurances are not recoverable.

Clauses are frequently inserted in policies of assurance, containing conditions, on the performance or non-performance of which the pre inium is returnable.

An action was brought against an underwriter for a return of premium. The material part of the policy was in these words: “At and from any port or ports in Grenada to London, or any ship or ships that shall sail on or between the 1st of May and the 1st of

August, 1778, at 18 guineas per cent., to return £8 per cent. if she sails from any of the West India Islands with convoy for the voyage, and arrives." At the bottom there was a written declaration that the policy was on sugars (the muscovado valued at £20 per hogshead.) The ship, the Hankey, sailed with convoy, within the time limited: she arrived in the Downs, where the convoy left her: convoy never coming farther, and indeed seldom beyond Portsmouth. After she had parted with the convoy, she struck on a bank, called the Pan-I Sand, near Margate, and eleven of fifty-one casks of sugar were washed overboard, and the rest damaged. The ship was afterwards got off the bank, and proceeded up the river, arrived safe in the port of London, and was reported at the custom-house. The sugars saved, heing sold, produced £340, instead of £800, which was a valuation in the policy. The plaintiffs insisted that they were entitled to have £8 per cent. also returned on the valued price of the eleven hogsheads of sugar which were lost, and on the difference between what the remaining forty hogsheads produced, and their valued price. At the trial before Lord Mansfield, the plaintiffs had a verdict to the full amount of their demand. The chief question, upon a motion for a new trial, was, to what the word "arrives" was intended to apply.

Lord Mansfield said, if the assured will not warrant a departure with convoy, he pays the full premium, and in that case the underwriter says, "If it turn out that the ship departs with convoy, I will return part of the premium." But a ship may sail with convoy, and be separated from it by a storm, or other accident, in a day or two, and lose its protection. On a warranty to sail with convoy, that would be a breach of the condition; but to guard against that risk, the assurer adds, in policies of the present sort, "the ship must not only sail with convoy, but she must arrive, to entitle me to the return. The words, and arrives, do not mean that the ship shall arrive in the company of the convoy, but only that she herself shall arrive. If she does, that shows, either that she had convoy the whole way, or did not want it. But in the stipulation for the return of the premium, no regard is had by the parties to the condition of the goods on the arrival of the ship. If it had been meant that no return should be made, unless all the goods arrived safe, they would have said, "if the ship arrive with all the goods," or safely with all the goods." The total or partial loss of the goods was the subject of the indemnity, and must be paid for by the underwriter. But, as to the return of the additional. premium, whether the goods arrive safe or not, makes no part of the question. The rule for a new trial was accordingly discharged.Simond v. Boydell, Doug. 255. See also Audley v. Duff, 2 Bos. & Pull. 111.

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When the policy is avoided by an alteration by the assured, the premium cannot be recovered back. · Langhorn v. Cadogan, 4

Taunt. 330.

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When a policy is void, being made without interest, contrary to the statute of the 19 Geo. II., if the ship arrive safe, the court will not allow the assured to recover the premium; but if a loss happen, and, the underwriters refuse to pay, on the ground of want of interest, they will not be allowed to retain the premium.

There are two general rules established, which govern almost all cases. The first is, that where the risk has not been run, whether that circumstance was owing to the fault, the pleasure, or will of the assured, or to any other cause, except fraud, the premium shall be

returned. Another rule is, that, if the risk has once commenced there shall be no apportionment or return of premium afterwards. Hence, in cases of deviation, though the underwriter is discharged from his engagement; yet, the risk being once commenced, he is entitled to retain the premium. Cowp. 668.

When, however, from the nature of the agreement between the parties, or the nature of the voyage, the contract becomes divisible, "a part of the premium shall be retained for the risk run, and part shall be returned, as the risk has never commenced."

The first time in which this doctrine was considered at any length, was in a case which came before the court of king's bench in the year 1761. It was an assurance upon a ship, at five guineas per cent. lost or not lost, at and from London to Halifax, in Nova Scotia, warranted to depart with convoy from Portsmouth, for the voyage, that is to say, the Halifax or Louisburg convoy. Before the ship arrived at Portsmouth the convoy was gone. Notice of this was immediately given by the assured to the underwriter; and at the same time he was also desired either to make the long assurance or to return part of the premium. The jury found that the usual settled premium, from Loudon to Portsmouth, was one and a half per cent. They also found that it is usual for the underwriter, in such cases, to return part of the premium; but the quantum is uncertain; and the quantum must, in its nature, be uncertain, because it depends upon uncertain circumstances. It was stated, that the plaintiff made an offer to the defendant of allowing him to retain one and a half per cent. for the risk he had run on such part of the voyage as was performed under the policy, viz. from London to Portsmouth.

Lord Mansfield." I had not at the trial, nor have now, the least doubt about this question myself. These contracts are to be taken with great latitude; the strict letter of the contract is not so much regarded as the object and intention of it. Equity implies a condition, "that the assurer shall not receive the price of running a risk, if he runs none." This is a contract without any consideration as to the voyage from Portsmouth to Halifax; for he intended to assure that part of the voyage as well as the former part of it, and has not. Consequently, the assured received no consideration for this proportion of his premium; and then this case is within the general principle of actions for money had and received to the plaintiff's use. I do not go upon the usage: for the usage found is only that, in like cases, it is usual to return a part of the premium, without ascertaining what part. If the risk is not run, though it is by the neglect, or even the fault, of the party assuring, yet the assurer shall not retain the premium. It has been objected, that the voyage being begun, and part of the risk being already run, the premium cannot be apportioned. But I can see no force in this objection. This is not a contract so entire, that there can be no apportionment; for, there are two parts in this contract, and the premium may be divided into two distinct parts, relative, as it were, to two distinct voyages. The practice shows that it has been usual, in such like cases, to return a part of the premium, though the quantum be not ascertained. And, indeed, the quantum must vary as circumstances vary; so that it never can have been fixed with any precise exactness. But though the quantum has not been ascertained, yet the principle is agreeable to the general sense of mankind."-Stephenson v. Snow, 3 Burr. 1237. Rothwell v. Cooke, 1 Bos. & Pul. 172.

Some years afterwards, the principle established in the foregoing case was attempted to be applied to one which it did not at all resemble. That was in an assurance for twelve months at 9 per cent.; and, because the ship was captured within two months after the contract was made, a return of premium was demanded. But the contract in this case was entire; the premium was a gross sum stipulated, and paid for twelve months; and the parties, when they made the contract, had no intention or thought of a subsequent division, or apportionment, and therefore there could be no return of premium.— Tyrie v. Fletcher, Cowp. 666.

In a subsequent case, the court of king's bench adopted the same rule of decision, where the ship was assured for twelve months, and the risk ceased at the end of two. A distinction was attempted to be made, because, in this case, the whole premium, £18, was acknowledged to be received from the assured at the rate of fifteen shillings per month: and this, it was insisted, evidently showed the parties intended the risk to continue from month to month. This objection was, however, overruled; the court being of opinion, that the case last mentioned decided this: and that the fifteen shillings per month was only a mode of computing the gross sum.-Loraine v. Thomlinson, Doug. 585.

The two last cases were assurances upon time; but it seems perfectly clear, that, when the contract is entire, whether it be for a specified time or for a voyage, there shall be no apportionment or return, if the risk has once commenced. And, therefore, when the premium is entire in a policy on a voyage, where there is no contingency at any period, out or home, upon the happening or not happening of which the risk is to end, nor any usage established upon such voyages, although there be several distinct ports at which the ship is to stop, yet the voyage is one, and no part of the premium shall be recoverable.Bermon v. Woodbridge, Doug. 781.

In an action for a return of premium, the policy was "at and from Jamaica to London, warranted to depart with convoy for the voyage, and to sail on or before the 1st of August, at a premium of twelve guineas per cent." The ship sailed from Jamaica to London on the B1st of July, 1782, but without any convoy for the voyage. At the trial before Lord Mansfield, the jury found a verdict for the plaintiff, subject to the opinion of the court, upon a case, stating the facts already mentioned. In addition to which, they expressly find, "that it is the constant and invariable usage in an assurance, at and from Jamaica to London, warranted to depart with convoy, or to sail on or before the 1st of August, when the ship does not depart with convoy, or sails after the 1st of August, to return the premium, deducting one half per cent."

Lord Mansfield."The law is clear, that if the risk be commenced, there shall be no return. Hence questions arise of distinct risks assured by one policy or instrument. My opinion has been to divide the risks. I am aware that there are great difficulties in the way of apportionment, and therefore, the court has sometimes leaned against them. But where an express usage is found by the jury, the difficulty is cured. They offered to prove the same usage as to the West Indies in general; but I stopt them, and confined the evidence to Jamaica." The court, therefore, decided for the plaintiff.--Long v. Allen, Easter Term, 25 Geo. III.

From the tenour of all these cases, it should seem, as Lord Mansfield

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