By this contract the insurer undertakes to indemnify the insured against loss on maritime property, arising from maritime perils, on a certain voyage, or during a certain period; the property, the perils, and the period, all being defined, in part by the instrument of agreement, and in part by the law. The language of policies and the statements and answers to questions are construed in the usual and popular sense of the words used. (a)1 If there be an ambiguity in restrictions or permissions, they are to be construed favorably to the insured. (aa) And accompanying circumstances, and the usage of the business in which a ship is employed, may help to construe ambiguous words. (ab)
This agreement is generally in writing; and the written instrument is called "a Policy of Insurance." But it need not be in writing, (ac) 2 unless the act of incorporation of the insurers re(a) Ripley v. AEtna Ins. Co. 30 N. Y. 136.
(aa) Hoffman v. AEtna Ins. Co. 82 N. T. 406.
(ab) New York Belting Co. v. Washington Ins. Co. 10 Bosw. 428. See the same principle applied to insurance on a building. New York, etc. v. Hamilton Ins. Co. 10 Bosw. 587.
(ac) Union Ins. Co. v. Commercial
Ins. Co. 2 Curtis, C. C. 524, affirmed, Commercial Ins. Co. v. Union Ins. Co. 19 How. 818; Baptist Church v. Brooklyn F. Ins. Co. 18 Barb. 60; 10 N. Y. 806; Sanborn v. Fireman's Ins. Co. 16 Gray, 448; Smith v. Odlin, 4 Yeates, 468; Hamilton v. Lycoming Ins. Co. 6 Barr, 889. But see Real Estate ins. Co. v. Roessle, 1 Gray, 336.
1 It was declared in Rodocanachi v. Elliott, L. R. 8 C. P. 649, that a marine policy may cover the risks daring a portion of the transit to be performed overland, provided apt language be employed to express that intention. - A contract of marine insurance is a maritime contract within the admiralty jurisdiction of the United States courts. Insurance Co. v. Dunham, 11 Wall. 1, affirming De Lovio v. Bolt, 2 Gall. 398. - An application for insurance may be drawn with a lead pencil. City Ins. Co. v. Bricker, 91 Penn. St 488.
2 In Relief Ins. Co. v. Shaw, 94 U. S. 574, it was stated that a valid contract of insurance can be made by parol, unless prohibited by statute or positive regulation; and quires it to be so. (b) 1 It may be oral only, or it may be made by an agreement to insure, entered and subscribed on the books of the insurers, in any manner usual in that office. (c) 2 Such an agreement is valid before a policy issues. But as such an agreement would imply that a policy should be issued, that agreement would effect such insurance as would the policy itself which was commonly used by the same insurers. (d) 3 The stamp act now requires a stamp on contracts to insure. As a stamp can be put only on a written instrument, it has been held, although only obiter, that a merely oral contract to insure is not now valid. (dd)
Formerly insurance was generally effected in this country by individuals subscribing a policy or insurance sheet; but now, * insurance is effected always or nearly so by incor porated companies.
The insurance may be effected by letter in the same manner as any other contract. The rules and principles of law which govern an agreement of this kind have been already stated. (e)
It is also a universal principle of the law of contracts, that there is no contract unless the parties agree together, about the same thing, in the same sense. If therefore an offer is made by either party, there is no contract unless that offer be accepted without any variation of its terms. (f) If, however, certain things in Westchester Ins. Co. v. Earle, 33 Mich. 143, an oral agreement extending the terms of subsisting policy was declared to be valid. See Taylor v. Germania Ins. Co. 2 Dillon, 282; Hartford Ins. Co. 9. Farrish, 73 Ill. 166; Northrop v. Mississippi Valley Ins. Co. 47 Mo. 435; Franklin Ins. Co. v. Taylor, 52 Miss. 441. That outside of the statute of frauds there is no rule of law which prevents written policies from being changed by parol, see Roger Williams Ins. Co. v. Carrington, 43 Mich. 253.
(b) Cockerill v. Cincinnati Int. Co. 16 Ohio, 148; Courtnay v. Miss. Ins. Co. 12 La. 288; Berthond v. Atlantic Ins. Co. 13 La. 580; Flint v. Ohio Ins. Co. 8 Ohio, 601; Spitzer v. St. Marks Ins. Co. 6 Duer, 6.
(c) Loring v. Proctor, 26 Maine, 18; Blanchard v. Waite, 28 id. 51; Woodruff v. Columbus Ins. Co. 6 La. An. 697; Perkins v. Washington Ins. Co. 4 Cowen, 646.
(d) Oliver v. Commercial Ins. Co. 2 Curtis, C. C. 291; Franklin Ins. Co. v.
Hewitt 3 B. Mon. 239; Kelly v. Commonwealth Ins. Co. 10 Bosw. 82; Xenos v. Wickham, Law Rep. 2 H. L. 206.
(dd) West Mass. Ins. Co. v. Duffey, 2 Kansas, 847.
(e) See ante, vol. i. •406-*406.
(f) Routledge v. Grant, 3 Car. & P. 267, 4 Bing. 658; Ocean Ins. Co. v. Carrington, 8 Conn. 867; Eliason v. Henshaw, 4 Wheat. 225; Hutchison v. Bowker, 6 M. & W. 535; Myers v. Keystone Ins. Co. 27 Penn. State, 268.
1 Ins. Co. v. Colt, 20 Wall. 560; Hening v. United States Ins. Co. 2 Dillon, 26.
2 Or it may be entered by an agent in his "binding book," so called, Putnam v. Home Ins. Co. 123 Mass. 324.
3 Where the agreement for insurance is complete, a policy must issue although a loss has meanwhile occurred. Ins. Co. v. Colt. 20 Wall. 560; Excelsior Ins. Co. v. Royal Ins. Co. 55 N. T. 343; Marx v. National Ins. Co. 25 La. An. 39; Baldwin v. Chouteau Ins. Co. 56 Mo. 151.
are still to be done before the contract is complete, and a subsequent policy is issued and accepted before they are done, this would amount to or imply a waiver of these things. (g)
In many of our States, there is a statute requirement that the policies shall be signed by certain officers. But a distinction has been taken between the policies and the contracts, and it is held that under such a statute the contract of insurance may be made as at common law, by parol. (gg)