For effect and materiality of certain other disclosures, see Kirby vs. Smith, 1 B. & Al., p. 672; Littledale vs. Dixon, 1 New R., p. 151; Rook vs. Thurmond, Millar on Ins., p. 57; Williams vs. Delafield, 2 Caines, p. 329; Alsop vs. Commer. Ins. Co., 1 Sumner, p. 451; see 2 Duer on Ins., pp. 541-550; and generally see Duer, 2 vol., pp. 379-499; Phillips on Ins., Sub. Secs. 524-685; 1 Arnould Mar. Ins., pp. 520-550; Dixon Ins., pp. 67, 68; 1 Parsons Mar. Ins., pp. 467-501.

FACTS WHICH INSURED IS NOT BOUND TO COMMUNICATE.-See Sec. 2564, ante, and note, and 2 Duer Ins., p. 552, et seq. Facts that the insured is not bound to disclose in the first instance, but in relation to which he must answer truly the inquiries of the insurer. Actual or presumed knowledge of the insurer.-See Carter vs. Boehm, above cited; Browne vs. Shaw, 1 Caines, p. 489; Green vs. Merch. Ins. Co., 10 Pick., p. 402; Court vs. Martineau, 3 Doug., p. 161; Dickinson vs. Com. Ins. Co., Anthon's N. P. R., p. 92; Friere vs. Woodhouse, Holt, p. 572; Elton vs. Laskins, 8 Bing., p. 198; S. C., 5 Carr. & Payne, pp. 86, 385; Mackintosh vs. Marshall, 11 Mees. & Wels., p. 116. Political perils.-Kohne vs. Ins. Co. of N. A., 1 Wash. C. C. R., p. 158; S. C., 6 Binney, p. 219; Sperry vs. Del. Ins. Co., 2 Wash. C. C. R., p. 243; Calbreath vs. Gracy, 1 Wash. C. C. R., p. 219; Pollock vs. Babcock, 6 Mass., p. 234; Livingston vs. Maryland Ins. Co., 7 Cranch, p. 506; 3 Taunt., p. 41; Durell vs. Bedesly, 1 Holt, p. 283; Blagge vs. N. Y. Ins. Co., 1 Caines, p. 565; Hoyt vs. Gilman, 8 Mass., p. 336. Natural perils.— See Carter vs. Boehm, above cited; Alsop vs. Com. Ins. Co., 1 Sumner, p. 451; De Longuemere vs. N. Y. Ins. Co., 10 Johns., p. 120. Perils in usages of trade.Stewart vs. Bell, 5 B. & Al., p. 238; Maryl. & Phoenix Ins. Co. vs. Bathurst, 5 Gill. & Johns., p. 159; Buck & H. vs. Ches. Ins. Co., 1 Peters S. C. R., p. 151; Long vs. Bolton, 2 B. & P., p. 210. Implied waiver.-Murray vs. United Ins. Co., 2 Johns. Cas., p. 263; Elting vs. Scott, 2 Johns., p. 157; Hodgson vs. Marine Ins. Co., 5 Cranch, p. 100; Buck vs. Chesapeake Ins. Co., 1 Peters S. C. R., p. 151; M. & P. Ins. Co. vs. Bathurst, 5 Gill. & J., p. 159; Seamans vs. Loring, 1 Mason, p. 127; but see Bandny vs. Union Ins. Co., 2 Wash. C. C. R., p. 391; Livingston vs. Mar. Ins. Co., 6 Cranch, p. 274; Stocker vs. Merrimack Ins. Co., 6 Mass., p. 220; Goix vs. Knox, 1 Johns. Cases, p. 337; Skidmore vs. Desdoity, 2 Johns. Cases, p. 77; Radcliffe vs. United Ins. Co., 7 Johns., p. 46. Where it is known to the insurer that a certain ship has

been used in one kind of employment, it is probable that the insured should state to the insurer the fact, if it is contemplated to change the employment of the vessel. See 2 Duer Ins., p. 572, note. See, further, Livingston vs. Marine Ins. Co., 6 Cranch, p. 274; 7 Cranch, p. 506; De Wolf vs. N. Y. F. Ins. Co., 20 Johns., p. 214; S. C., 2 Cowen, p. 56. No disclosure is necessary as to risks excepted from the policy.-Duer, p. 578; 1 Phillips, Sub. Sec. 214. For cases in which a concealment operates only as an exception of the risk concealed.-See 2 Duer Ins., pp. 269, et seq., 585, et seq. National character of the insured.-Conway vs. Gray, 10 East, pp. 536-539; Tonteng vs. Hubbard, 3 B. & P., p. 291; Simon vs. Dazett, 2 M. & S., p. 94; Flindt vs. Scott, 5 Taunt., p. 674; Bazett vs. Meyer, 5 Taunt., p. 824 (see comments on these cases.-2 Duer Ins., p. 592); Campbell vs. Innes, 4 B. & Al., p. 423. But, as to this rule generally in the United States, see McBride vs. The Mar. Ins. Co., 5 Johns., p. 318; Odlin vs. Ins. Co. of Penn., 2 Wash. C. C. R., p. 320; Francis vs. Ocean Ins. Co., 6 Cowen, pp. 404-416. See 3 Kent Comm. (5 ed.), pp. 291, 292; Duer Ins., Vol. 2, p. 594. Liability of neutral property to capture or detention. Where voyage or trade prohibited by law of nations or special provisions of a treaty. When prohibited by unjust or arbitrary decrees, etc., of belligerent power.-Mayne vs. Walter, Marsh, p. 399; S. C. Park (8th ed.), p. 431; Sperry vs. Del. Ins. Co., 2 Wash. C. C. R., p. 243; Kohne vs. Ins. Co. of N. A., 1 Wash. C. C. R., pp. 93-158; S. C., 6 Binney, p. 219. See for rules deducable from these cases.-2 Duer Ins., p. 610. Goods contraband of war, when disclosure is necessary.-Richardson vs. Maine Ins. Co., 6 Mass. p. 102; Cook vs. Essex F. & M. Ins. Co., 6 Mass., p. 122; Wheatland vs. Gray, 6 Mass., p. 124; Parker vs. Jones, 13 Mass., p. 173; Archibald vs. Merch. Ins. Co., 3 Pick., p. 70; 3 Kent's Comm. (5th ed.), p. 268. See 2 Duer Ins., p. 614, 615; Browne vs. Shaw, 1 Caines, p. 489. Illicit trade, etc.-Sewall vs. Royal Exch. Ass. Co., 4 Taunt., p. 855; Williams vs. Suffolk Ins. Co., 3 Sumner, p. 270. As to whether exemption of underwriter, when risk not known or disclosed, is absolute.See Suydam vs. Mar. Ins. Co., 1 Johns., p. 181; Schmidt vs. United Ins. Co., 1 Johns., p. 249; Craig vs. United Ins. Co., 6 Johns., p. 226; Olivera vs. Union Ins. Co., 3 Wheat., p. 183; Smith vs. Universal Ins. Co., 6 Wheat., p. 176; Pollock vs. Babcock, 6 Mass., p. 235; Richardson vs. Marine Ins. Co., 6 Mass., p. 102; Parker vs. Jones, 13 Mass., p. 173; Archibald vs. Mer

cantile Ins. Co., 3 Pick., p. 70. See, particularly, Andrews vs. Essex F. & M. Ins. Co., 3 Mason, p. 6, where the above cases are cited and examined by Story, J. Construction of clause in American policies excepting losses from illicit trade.-See Brown vs. Shaw, 1 Caines, p. 489; Johnston vs. Ludlow, 2 Johns. Cases, p. 481 (1 Caines' Cases in Err., p. 29); Laing vs. United Ins. Co., 2 Johns. Cas., pp. 174, 489; Suydam vs. Mar. Ins. Co., 1 Johns. R., p. 181; Tucker vs. Juhel, 1 Johns., p. 20; Mumford vs. Phoenix Ins. Co., 7 Johns., p. 449; Gracie vs. N. Y. Ins. Co., 13 Johns., p. 161; Frances vs. Ocean Ins. Co., 6 Cowen, p. 404; Dunham vs. Amer. Ins. Co., 12 Wend., p. 463; S. C. (in Error), 15 Wend., p. 9; Smith vs. Del. Ins. Co., 3 Serg. & Rawle, p. 82; Faudel vs. Phoenix Ins. Co., 4 Serg. & Rawle, p. 29; Krumbhaar vs. Mar. Ins. Co., 1 Serg. & Rawle, p. 281; Savage vs. Pleasants, 5 Binney, p. 403; Higginson vs. Pomeroy, 11 Mass., p. 104; Cucullu vs. Orleans Ins. Co., 1 Martin, Sec. 11; same vs. same, 8 Martin, Sec. 492; same vs. Louis. Ins. Co., 5 Martin, Sec. 466; Smith vs. Del. Ins. Co., 3 Wash. C. C. R., p. 127; Graham vs. Penn. Ins. Co., 1 Wash. C. C. R., p. 113; Seaton vs. Del. Ins. Co., 2 Wash. C. C. R., p. 175; Church vs. Hubbart, 2 Cranch, p. 187; Carrington vs. Merch. Ins. Co., 8 Peters (U. S.), p. 495. Want of necessary papers. Insurer not liable unless fact be disclosed.-Cleveland vs. Marine Ins. Co., 8 Mass., p. 308; Polleys vs. Ocean Ins. Co., 2 Shepley, p. 141. Use of false papers. When must be disclosed.-Steele vs. Lacy, 3 Taunt., p. 284; Horneyer vs. Lushington, 15 East, p. 46; Oswell vs. Vigne, 15 East, p. 70; Bell vs. Bromfield, 15 East, p. 364; Planche vs. Fletcher, Doug., p. 283. In the last case, the destination of the ship was concealed by a a false clearance, and counsel maintained that this was a fraud upon the insurers (underwriters), but Lord Mansfield held "there was no fraud on them or on anybody, since what had been practiced had been proved to be the constant course of the trade, and notoriously so to everybody." It is probable that this being usage, the knowledge of the underwriter as to the facts might be inferred.-See, in this connection, Livingston vs. Maryland Ins. Co., 7 Cranch, p. 506; Buck & Hedrick vs. Chesapeake Ins. Co., 1 Peters S. C. R., p. 151; Calbreath vs. Gracy, 1 Wash. C. C. R., p. 192; Maryland Ins. Co. vs. Bathurst, 5 Gill. & J., p. 159; Le Roy vs. United Ins. Co., 7 Johns., p. 343. There are some cases (Seaton vs. Low, 1 Johns. Cas., p. 1; Juhel vs. Rhinelander, 2 Johns. Cas., p. 120; S. C. id., p. 487; Skidmore vs.

Material

information.

Presumption of

of loss.

Desdoity, 2 Johns. Cas., p. 77; De Peyster vs. Gardner, 1 Caines, p. 492) in which it was held that the risks of a contraband and of an illicit trade, are always covered by a policy in general terms; that the risks are only excluded by express stipulation. But these decisions are inconsistent with the Massachusetts decisions and the law of Europe; and Mr. Kent (Comm., 5th ed., p. 268) declares that their authority on this point may be considered as overruled. The cases of Barnewall vs. Church (1 Caines, p. 217, and Elting vs. Scott, 2 Johns., p. 157) fall under the same objection as to express warranty of neutrality, etc. See Sec. 2672, in which many of the points discussed in the decision cited in this note are settled and the insurer is exonerated from the risk concealed in certain cases, though only from a loss resulting from such concealed risk.

2670. In marine insurance, information of the belief or expectation of a third person, in reference to a material fact, is material.

NOTE.-2 Duer Ins., p. 388; Willis vs. Glover, 1 B. & Pul. N. R., p. 14; see note to preceding section.

2671. A person insured by a contract of marine knowledge insurance is presumed to have had knowledge, at the time of insuring, of a prior loss, if the information might possibly have reached him in the usual mode of transmission, and at the usual rate of communication.

Conceal

ments

NOTE.-Heretofore the law has been that the knowledge of the assured or of his agents of the material facts alleged to have been concealed is never presumed, but must be established by positive evidence.-See Livingston vs. Delafield, 3 Caines, p. 49. The rule of the text prevails in continental Europe, and its adoption is recommended by Mr. Duer (Ins., Vol. 2, p. 433). The presumption raised by the provision of the text is not absolute; it may be repelled by other evidence. Its only effect seems to be to shift the burden of proof.— See Stewart vs. Dunlop, 4 Browns P. C. (Tomlin's Ed.), p. 483; Duer Ins., Vol. 2, pp. 536-541.

2672. A concealment in a marine insurance, in re

which only spect to any of the following matters, does not vitiate

affect the

risk in

question.

the entire contract, but merely exonerates the insurer from a loss resulting from the risk concealed:

1. The national character of the insured;

2. The liability of the thing insured to capture and detention;

3. The liability to seizure from breach of foreign laws of trade;

4. The want of necessary documents; and, 5. The use of false and simulated papers.

NOTE.-See note to Sec. 2669, where these subjects are fully discussed, and the law which exists in other States and has heretofore existed in this State, is carefully considered.

ARTICLE IV.

REPRESENTATIONS.

SECTION 2676. Effect of intentional falsity.

2677. Representation of expectation.

2676. If a representation, by a person insured by a contract of marine insurance, is intentionally false in any respect, whether material or immaterial, the insurer may rescind the entire contract.

NOTE.-Park on Ins., p. 405; Skin., p. 327; see notes to Secs. 2561-2582, inclusive, ante; see, too, 2 Duer Ins., p. 644, et seq.; 1 Marshall Ins., p. 450; 1 Phil. Ins., Sub. Secs. 524-685, inclusive; see note to Sec. 2669, ante.

Effect of

intentional

falsity.

tation of

2677. The eventual falsity of a representation as Represento expectation does not, in the absence of fraud, avoid expectation a contract of insurance.

ARTICLE V.

IMPLIED WARRANTIES.

SECTION 2681. Warranty of seaworthiness.

2682. Seaworthiness, what.

2683. At what time seaworthiness must exist.

2684. What things are required to constitute seaworthiness.

24-vol. ii.