Assignment of policy.—A marine policy is assignable unless it contains terms expressly prohibiting assignment ; and it is immaterial whether or no the underwriter assents to the assignment. Where a policy has been assigned so as to pass the beneficial interest in it, the assignee may sue thereon in his own name or in that of the assignor ; and the defendant is entitled to make any defence arising out of the contract which he would have been entitled to make if the action had been brought in the name of the person by or on whose behalf the policy was effected. The underwriter cannot therefore be prejudiced merely by the assignment. A policy may be assigned by indorse ment or in any other customary manner. Notice of the assignment need not be given to the person liable thereunder, unless the assignment has been made under the Judicature Act as of a chose in action. An assured who has parted with or lost his interest in the subject-matter insured, and has not before or at the time of so doing expressly or impliedly agreed to assign the policy, cannot afterwards validly assign the policy, which will be deemed to have lapsed. But the foregoing must not be understood as affecting the general principle that a policy can be assigned as well after as before a loss, provided of course that the assured's interest in the policy had not been parted with before the loss.
The premium.—Unless otherwise agreed, the duty of the assured or his agent to pay the premium, and the duty of the underwriter to issue the policy to the assured or his agent, are concurrent conditions, and the under writer is not bound to issue the policy until payment or tender of the pre mium. Where a marine policy is effected on behalf of the assured by a broker, the latter, subject to any special agreement between the parties, is directly responsible to the underwriter for the premium, and the latter is directly responsible to the assured for the amount which may be payable in respect of losses or in respect of returnable premium. And the broker also, unless otherwise agreed, has, as against the assured, a lien upon the policy for the amount of the premium and his charges in respect of effecting the policy ; and where he has dealt with the person who employs him as a prin cipal he has also a lien on the policy in respect of any balance on any insur ance account which may be due to him from such person, unless when the debt was incurred he had reason to believe that such person was only an agent. A policy effected on behalf of an assured by a broker, which contains an acknowledgment of the receipt of the premium, is a conclusive receipt for the premium, in the absence of fraud, as between the underwriter and the assured ; but not as between the underwriter and broker.
Loss.—Generally speaking, and apart from any special provisions in a policy, the underwriter is liable for any loss proximately caused by a peril insured against, but not for any loss which is not so caused. An insurance against loss by wreck would cover a case where the cargo is seized by the savage inhabitants of a coast whereon the ship has been Ns reeked ; the wreck of the ship would be the proximate cause of the loss of cargo. In particular
—(a) the insurer is not liable for any loss attributable to the misconduct of the assured, but, unless the policy otherwise provides, he is liable for any loss proximately caused by a peril insured against, even though the loss would not have happened but for the mistaken judgment, misconduct, or neg ligence of the master or crew; (b) unless the policy otherwise provides, the insurer on ship or goods is not liable for any loss proximately caused by delay although the delay is caused by a peril insured against; (e) unless the policy otherwise provides, the insurer is not liable for any loss caused by ordinary wear and tear, ordinary leakage and breakage, inherent vice or nature of the subject-matter insured, or any other ordinary and normal operation of natural causes, or for any loss caused by rats or vermin, or for any injury to machinery not caused by maritime perils. A loss may be either total or partial. Any loss other than a total loss, as defined below, is a partial loss. And a total loss in its turn may be either an actual total loss or a constructive total loss. Unless a different intention appears from the terms of the policy, an insurance against total loss includes a constructive, as well as an actual, total loss. Where the assured brings an action for a total loss, and the evidence proves only a partial loss, he may, unless the policy otherwise provides, recover for a partial loss This gives the assured an opportunity to correct any erroneous estimate he may have made as to the extent of the loss he has suffered. An actual total loss occurs where the subject-matter insured is destroyed, or irreparably damaged, or where the assured is irretrievably deprived thereof. And, in particular, goods are con sidered to be irreparably damaged where they are so damaged as to cease to exist in specie, or that they cannot be rendered capable of arriving at their destination in specie. They cease to exist in specie when they no longer answer to the denomination under which they were insured. A wrecked ship is thus not a ship as insured, decomposed wheat is not wheat, and rotten fruit is not fruit. No notice of abandonment need be given in the case of an actual total loss. Where the ship concerned in an adventure is missing, and after the lapse of a reasonable time no news of her has been received, an actual total loss may be presumed. What is a reasonable time depends upon the circumstances of the particular case. The liability of the underwriter will continue, notwithstanding the landing or transhipment, if a voyage is inter rupted at an intermediate port or place by a peril insured against, under Buell circumstances as, apart from any special stipulation in the contract of affreight. ment, justifies the nia.ster in landing and reshipping the goods or other movables, or in transhipping them and sending them on to their destination.