a reasonable time, declare his dissent, or neglect to give notice of his assent. That he avail himself of this disagreement, the consignee should give reasonable notice thereof, and he must within a reasonable time declare his intention. For if, after notice he is silent, his assent shall no longer be presumed. If the goods arrive here before the consignor can have notice that his consignee had disagreed to the shipment, any person, at the request of the consignee, may receive and take care of them until the consignor can have notice; and an intermediate attachment shall not defeat his right. Per Parsons, C. J. in 5 Mass. 157. However, if the consignees here undertake to assign the goods, and authorize a sale thereof for the use of the consignor; this is in affirmance of the contract; and we cannot presume that the consignor would consent to the appointment of a factor, with power to receive and sell. The authority of the factor is derived from the consignee, and necessarily supposes an interest in the goods. Id.

Whether stoppage in transitu rescinds the contract of sale altogether, or only puts the vendor in possession of a lien on the goods defeasible on payment of the price agreed on, is still undetermined. See 10 B. & C. 99 ; 3 B. & Ad. 323.

In Jordan v. James, 5 Ohio, 98, it was held, that the vendor's right of stopping in transitu, was not founded on the right to rescind the contract, but rested on the ground of an equitable lien; and that the vendee had a right to redeem the goods on complying with the contract or paying the price.

(e.) Of joint and several interests in the same policy.—A factor or commission merchant who has the consignments of the merchandize of different employers, may cover the whole with one insurance, in the name of the consignee who has the actual possession and charge of the whole, and the same special property in all. The form of insurance now in use is, a general policy in the name of the commission merchant, on all the goods that may be in his warehouse, at any time within a given period, to a specified amount, whether held by him as owner, or in trust, or on commission. And under such a contract the insurers will be answerable for loss or damage by fire, within the terms of the insurance, to whatever merchandize or property may happen to be in the warehouse at the time of the fire, and be then held by the assured, as general or special owner, without regard to the time of his receipt of the goods in store, or the persons who may be interested in them. De Forest v. The Fulton Fire Ins. Co. 1 Hall, 84. A policy, thus made, cannot be considered as attaching specifically and solely, on the goods in the hands of the factor, at the date of the policy. The property of consignors is constantly changing, in the hands of the consignees; and it will and must often happen, that no part of the specific goods, originally covered by the policy, is exposed to loss, when any fire may take place. The goods of A., which occupy a place in his warehouse, at the present moment, may be sold before the close of the day, and the goods of B. take their place to-morrow; and in the course of thirty days, as many different lots of merchandize may have had the shelter of his warehouse, and been exposed for different periods of time, to the risk or loss or damage by fire therein. By Jones, C. J. ib.

Several insurable interests arise out of the same property. Where several are interested in the same subject, one may insure his interest without disclosing his title whether it be joint or several. Such an insurance is not within the clause, which requires notice to be given of any previous insurance. Tyler v. Aetna Ins. Co. 12 Wend. 507—9 ib. 404. See also the case of Oliver v. Greene, 3 Mass. 137. In the case of Holbrook v. Brown, 2 ib. 280, the captain of the vessel was entitled to certain commissions on her arrival and he effected an insurance on his "property in the vessel :" Held, that the word "property" was very comprehensive, and included the interest of the master, whether it was to be considered as commissions or as a specific proportion of the cargo belonging exclusively to him.

It is not now to be disputed, that several persons having several interests in property, may insure to the full value of that interest. There are numerous cases settling this point. By Parker, C. J. in Locke v. North Amer. Ins. Co., 13 Mass. 61. But one tenant in common has no right, merely in virtue of such relation to cause insurance to be made on property on board of a vessel for his co-tenant. 11 Pick. 85. Nor has a master of a vessel a right merely as master to procure insurance for the owners. ib. and see 1 Conn. 571. Where the insurance is on property for whom it may concern, or for the owners generally in a marine insurance, it may be shown by extrinsic evidence, that the plaintiffs intended that the policy should cover separate or joint property, or both. And even where the assured are not named in the policy, it is competent to prove who they are by extrinsic evidence. Foster v. The United States Ins. Co. 11 Pick. 85.

Joint owners of property insured for their joint use and on their joint account cannot recover upon a count upon the policy, averring the interest to be in one of them only, Bell v. Ansley, 16 East, 141. If the assured aver an entire interest in themselves in the subject insured, such averment cannot be supported by evidence of a joint interest with others. Nor can the averment of a joint interest with others be supported by proof a sole interest. By Thompson, J. in Catlett v. Pacific Ins. Co., 1 Paine's C. R. 615; 1 Wend. 661. Where the insurance is made on the account of the others interested as well as himself, the joint interest should be truly averred, and proved as averred. Murray v. Col. Ins. Co., 11 J. R. 202. In the case of Foster v. The United States Ins. Co. 11 Pick. 85, G. B. & M. were joint owners of the vessel; G., who was master as well as owner wrote to the plaintiffs as follows:"The property to ship home in Sampson, say $1000, you will insure at lowest rate on account of owners." The policy was in the name of the plaintiff's thus:-" Cause Foster and Thompson, for the owners of brig Sampson to be assured, lost or not lost, $1000 on property on board brig Sampson, at," &c. There were several counts in the declaration, but the averments in the second count corresponded precisely with the fact; and G. recovered not only the amount of his property on his sole account, but his interest also in the joint property. The Court say-"We consider the policy to be effected for whomsoever it might concern, being owners of the Sampson, and that those were words of description of the persons who were to be assured, compre

hending one or more who were owners. And we think it is within the true meaning of the policy to ascertain the interest, as well as the persons who were the owners, by extrinsic evidence.

The fire policy limits its protection to those who are specially named in it. But it is also a contract of indemnity to the assured solely. It is the difference in the terms of the different contracts, that creates the difference in the nature and extent of the insurance :-" and I am not prepared to say, that the policy against the risk of fire, is not capable of as much latitude, as the policy against maratime risks." By Jones, C. J. in 1 Hall, 84.

If the assured has an interest in the entire thing, he may insure separately, and under a general averment of interest in the entire thing, he shall recover for the loss, in proportion to his interest proved upon the trial. Murray v. Col. Ins. Co. 11 J. R. 311. 312. And where the policy is a valued policy upon the whole ship, and the plaintiff owns but a moiety, he will recover only according to his interest proved upon the trial; although the valuation in the policy covers the real value of the ship. ib. The contract being one purely of indemnity, whether it be an open or a valued policy.

The plaintiff effected insurance "on his goods, stock in trade," &c; and it was held, that the policy covered goods in his stores bought on joint account and sold for the mutual profit of the insured and another person, the insured being in advance on the adventure:-Held also, that the insured being absolute owner of one half of the goods in the store, had an insurable interest in them as stock in trade, and also to cover his advances on the whole stock. Millaudon v. Atlantic Ins. Co. 8 Lou. R. 557.

In Bell v. Humphreys, 2 Stark. R. 345, there were five owners of a ship, and two of them, who were the managing owners or ship's husbands, procured insurance upon the whole vessel, and Lord Ellenborough held that they had no authority to insure the interest of the other three owners, and that the latter were not liable for the premiums of insurance. The case of Lawrence v. Sebor, 2 Caines, 203, was an insurance by one of two joint owners of the cargo, upon their joint interest therein; and the majority of the court held that the acting partner was bound to insure for both. Two of the judges, however, considered the insurance as effected only on the part owned by the former. If the insurance is effected by one of the owners for account of the owners, all interested in the ship may enforce the insurance; and although it be originally effected without authority by one of the part-owners, the other owners may confirm and ratify his doings and claim the benefit of the policy. Turner v. Burrows, 8 Wend. 144.

An assured part owner of a vessel may maintain an action of assumpsit for money had and received against an insurance broker, who has received from the underwriters the full amount of the sums subscribed on a total loss, although several other persons are interested as part-owners, who had given the defendant notice of their interest, where the plaintiff insured on the whole ship generally, through the intervention of his captain, who gave the order for effecting the insurance. Roberts v. Ogilvy, 9 Price, 269.

CHAPTER III.

THE NATURE AND EXTENT OF THE RISKS FOR WHICH THE INSURERS UNDERTAKE.

1. What risks are in general within a policy:—and herein of barratry, negligence, &c.

The property embarked in a marine adventure may be insured against all the numerous Risks and Perils to which it is exposed, except in some particular instances, where the insurance against certain risks is disallowed on principles of public policy, or excluded from the nature of the contract itself. Losses by perils of the sea, are those which happen from the sea, and are necessarily incidental to a ship engaged in a sea voyage; such as those occasioned by the winds and waves: by lightning, storms and tempest; by rocks,'sands, and other natural causes. Hughes Insu. 213.

sea.

It is the proximate cause which must be regarded in considering whether a loss is to be ascribed to a particular peril or not. Thus, in Hahn v. Corbett, 2 Bing. R. 205, where there was a warranty from capture and seizure, when the ship was stranded on a shoal within a short distance from the port of destination, and lost; but while she lay disabled from proceeding she was seized by the commander of the place at which she was stranded, and the goods insured were confiscated by him, this was considered a loss by the perils of the And a loss is properly ascribed to the perils of the sea, when they are the immediate and proximate cause of the loss, although another remote or intervening cause may have contributed to bring the ship into danger. As in the case of collision, where the ship insured is run down by another vessel, without any blame being imputable to either, (3 Esp. 67; 3 Taunt, 4, 5 S. C.; 5 M & S. 466,) or where the collision happens through the default of the other vessel, (4 Taunt. 126) or even from the neglect of the crew of the ship insured, the loss in each case seems to be properly ascribable to the perils of the sea; for although neglect and mismanagement may have contributed to bring the two ships into contact, the loss is immediately occasioned by the force of the winds and waves. Hughes Insu. 216. And in general, a loss occasioned by a peril of the sea is embraced by the terms of a policy, although it is remotely attributable to the negligence of the master and mariners; for although there is an implied warranty on the part of the insured to provide the ship in the first instance with a sufficient crew, yet the insured do not undertake for the conduct of the crew during the voyage. And therefore, where the ship grounded in consequence of the watch on duty having fallen asleep, this was considered as a loss by the perils of the sea, for which the underwriters were liable 5 B. A 171; 2 ib. 75.

Whether in a marine policy (and a policy on rivers and inlands waters may be so called) where the risk of fire is taken, and the risk of barratry is not, a loss by fire, remotely caused by negligence, is a loss within the policy?

Per

The

"If we look to the question upon mere principle, without reference to authority, it is difficult to escape from the conclusion, that a loss by a peril insured against, and occasioned by negligence, is a loss within a marine policy; unless there be some other language in it, which repels that conclusion." Story, J. in Waters v. The Merchants' Louisville, Ins. Co, 11 Pet. 213. action was brought on a policy underwritten by defendants, whereby they insured and caused to be insured, the plaintiff "lost or not lost, in the sum of $6000, on the steamboat Lioness, engine, tackle, and furniture, to navigate the western waters usually navigated by steamboats, particularly from New Or leans to Natchitoches on Red River, or elsewhere, the Missouri and Upper Missouri excepted; (Captain Waters having the privilege of placing competent masters in command at any time, 6000 being insured at New Albany, Indiana) whereof William Waters is at present master; beginning the adventure upon the steamboat from the 12 Sep. 1832, at 12 o'clock meridian, and to continue and endure until the 12 Sep. 1833, at 12 o'clock, meridian. (12 months.) The policy further provided, that "It shall be lawful for the said Steamboat, during said time, to proceed to, touch and stay at, any point or points, place or places, if thereunto obliged by stress of weather or other unavoidable accidents, also at the usual landings for wood and refreshments, and for discharging freight and passengers, without prejudice to this insurance. Touching the adventure and perils, which the aforesaid insurance company is contended to bear; they are, of the rivers, fire, enemies, pirates, assailing thieves, and all other losses and misfortunes, which shall come to the hurt, detriment, or damage of the said steamboat, engine, tackle and furniture, according to the true intent and meaning of this policy." The premium was nine per cent. The declaration averred a total loss; and that the said steamboat and appurteances insured, "were, by the adventures and perils of fire and the river, exploded, sunk to the bottom of Red river aforesaid, and utterly destroyed."

It appeared that the boat was lost by the explosion of gunpowder, which she had on board at the time, and which she had received to transport; and the loss was occasioned by the unskillful, negligent and careless stowing away of the same in the boat, by the officers and crew, or some of them, so that the same took fire and became ignited, and the explosion thereby produced. The opinion of the court was certified thus. On consideration whereof, it is the opinion of this court, 1st, that the policy does not "cover a loss of the boat by a fire, caused by a barratry of the master and crew;" 2d, that the policy does cover a loss of the boat by fire, caused by the negligence, carelessness or unskillfulness of the master and crew of the boat, or any of them ;" 3d, that the allegations of the defendants in their pleas or either of them to the effect that the fire, by which the boat was lost, was caused by the carelessness, or the neglect, or unskillful conduct of the master and crew of the boat "is not a defence to this action; and 4thly, that the said pleas, or either of them, " are not sufficient in law as a bar to the action of the plaintiff." ib. p. 225.

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