Phosphate of Lime Co. v. Green. 1871 stances, ratified and adopted what had been done by the directors, and that the plea of accord and satisfaction was proved. Attorneys for plaintiffs: Mercer & Mercer. Rule discharged. Attorneys for defendants: Stevens, Wilkinson, & Harries. *CASES DETERMINED BY THE COURT OF COMMON PLEAS, AND BY THE COURT OF EXCHEQUER CHAMBER ON ERROR AND APPEAL FROM THE COURT OF COMMON PLEAS, IN AND AFTER HILARY TERM, XXXV VICTORIA. January 15, 1872. 65] ANDERSON and Others v. THE PACIFIC FIRE AND MARINE INSURANCE COMPANY. Law Reports, 7 Common Pleas, 65. Marine Insurance - Misrepresentation of a Material Fact. On effecting an insurance on freight from Belize to R. Point on the Honduras coast (a place the exact locality of which was not known to either party) and thence to London, the agent of the assured produced and read to the agent of the assurers a letter which the owners of the vessel had received from the captain from Belize, in which R. Point was thus described :-" It is considered by the pilot here as a good and safe anchorage, and well sheltered. I have been out and seen the place, and consider it quite safe." It was admitted that this statement of the captain was made bonâ fide; but there was evidence that R. Point was not at the particular season a safe anchorage. In an action upon the policy, for a total loss, the judge told the jury that in his opinion the letter did not amount to a statement of a fact, but merely of an opinion; and he left two questions to them,-1. Was the letter read to D., the agent of the assured? 2. Did the captain and the pilot consider that R. Point was a safe anchorage? The jury answered both questions in the affirmative, and a verdict was entered for the plaintiffs:-- Held, no misdirection, and that the verdict was warranted by the evidence. THIS was an action upon a policy of insurance on chartered freight of the ship Clarendon, valued at 1000l., from Belize to 66] *Rendez-vous Point, in the island of Turneffe, back to Belize, thence to other ports, and finally to London. The cause was tried before Brett, J., at the sittings in London after last term. The facts were as follows:- The plaintiffs are Anderson v. Pacific Fire and Marine Insurance Co. 1872 merchants in London, and the owners of the ship Clarendon. The defendants are an insurance company in London. Rendez-vous Point, mentioned in the policy, is at the north of Turneffe, an island on the Honduras coast about twenty miles from Belize, off which there is a dangerous coral reef. A vessel called the Gibraltar, laden with a cargo of mahogany, had been wrecked there, and the Clarendon, which was then lying at Belize, was, on the 30th of November, 1870, chartered to proceed to the spot to recover the mahogany and bring it back to Belize, and thence to London, at a freight of 31. 10s. per ton, which was about 20s. per ton beyond the ordinary rate of freight. The captain, by letter of the 3d of December, informed his owners of his having entered into that charterparty, and requested them to effect an insurance on freight. In that letter, which was received in London on the 28th of December, the captain thus described Rendez-vous Point: "It is considered by the pilot here as a good and safe anchorage, and well sheltered. I have been out and seen the place, and consider it quite safe." On the day following 'the receipt of that letter, one Bruce, the plaintiffs' clerk, went to the office of the defendants in order to effect the insurance. He saw Drummond, the principal manager of the company. There was a conflict of evidence as to what passed at that interview; Drummond stating that Bruce told him that Rendezvous Point was a safe anchorage, and that his principals had received a letter to that effect from the captain; and Bruce stating that he produced the captain's letter and read Drummond the extract above set out, adding no statement of his own, that Drummond asked him whereabouts Rendez-vous Point was, and he told him he did not know, and that Drummond took time to consider, and next day accepted the insurance at a rate somewhat higher than the ordinary rate of insurance from Belize. So entirely ignorant were both parties at the time of the name and position of Rendez-vous Point, which does not appear in the ordinary charts, though it is the point of departure for vessels sailing from Belize for Europe, that it was called in the slip "Rendennis Point." The policy was dated [67 the 7th of January, 1871. The Clarendon, in pursuance of the charterparty, proceeded to Rendez-vous Point, and the captain with a pilot went in a boat through an opening in the reef, and, finding what they consi 1872 Anderson v. Pacific Fire and Marine Insurance Co. dered good holding ground, took the vessel in and anchored her. The spot where she lay, though sheltered by the reef from the waves, was not sheltered from wind. After she had been there eight or nine days, a storm arose, and the vessel was totally lost. There was evidence on the part of the defendants that Rendez-vous Point was a dangerous place for a vessel to anchor during the hurricane months, it being exposed to what are called there the "northers." It was conceded that the conduct of the assured and also of the captain was perfectly bona fide; but it was contended that in what passed between Bruce and Drummond when the insurance was effected there was a concealment or a misstatement of a material fact, so as to vitiate the policy. The learned judge left it to the jury to say,- first, was the letter of the 3d of December, 1870 (that is, the material part of it), read to Drummond? — secondly, did the captain and the pilot consider that Rendez-vous Point was a safe anchorage? The jury answered both questions in the affirmative; and the learned judge thereupon said, there was no concealment; and directed the jury to find for the plaintiffs. Prentice, Q. C. (J. P. Murphy with him), moved for a new trial, on the ground of misdirection and that the verdict was against evidence. The substance of the representation made by Bruce to Drummond was that Rendez-vous Point was a safe anchorage, and well sheltered; and this all the evidence negatived. After the finding of the jury, it must be taken that the material part of the captain's letter was read to Drummond. But the reading of that letter by the plaintiffs' clerk amounted to a representation by him that he believed the fact to be as therein stated. It is the same as if the captain had gone to the office himself and made the statement. [BRETT, J. The question is, did Bruce assert that it was a safe anchorage, or only that the pilot and the captain thought it so?] 68] *Ionides v. Pacific Insurance Company (1) is an authority to show that what passed substantially amounted to a representation of the fact by Bruce. Blackburn, J., delivering the judgment of the Court, says (2): "It was argued that a representation, if only as to an expectation or belief, is substantially complied (1) Law Rep. 6 Q. B., 674. (3) Law Rep. 6. Q. B., at p. 683. Anderson v. Pacific Fire and Marine Insurance Company. 1872 with if the assured really had honestly entertained that expectation on sufficient grounds, and that the representation that he 'thought' the ship a Norwegian ship was literally true. We think this expression tantamount to an assertion that she was the Norwegian.” [WILLES, J. You must make out that the statement contained in the captain's letter is not merely an expression of opinion, but an assertion of a fact.] The evidence shows that the captain could not really have believed that Rendez-vous Point was a safe anchorage. WILLES, J. This is an action on a policy of insurance on freight of a ship called the Clarendon from Belize to Rendez-vous Point, thence back to Belize, and thence to London. The vessel was lost in the course of that voyage, and the defendants, who underwrote the policy, now seek to be discharged from liability as insurers, on the ground of an alleged material misrepresentation by the assured to their agent on the occasion of the policy being entered into. There is no doubt that a material misrepresentation, though perfectly honest at the time, made with the intent that it should be acted upon by the assurer, and which has led to the policy being granted, will defeat the policy. The rule as to the good faith which is required to be observed on the effecting a policy of insurance is so strict that the assured is bound to make known to the underwriter all the information in his power which is not within the ordinary knowledge and experience of an underwriter; and further, that, if a material fact which is stated to the underwriter turns out to be untrue, or a fact which is material to be stated is concealed from the underwriter, the policy is void, notwithstanding the assured may have acted with perfect good faith and honesty of intention. In the present case there was no concealment of anything known to the assured. The jury have found that the agent of the assured, at the time of affecting the policy, read to the defendants' *manager all that the assured themselves [69 knew as to the voyage, and especially all that they knew as to the security of the anchorage at Rendez-vous Point. He read to him the letter from the captain of the Clarendon, in which he said: "It is considered by the pilot here as a good and safe anchorage, and well sheltered. I have been out and seen the |