vessel unmoors and gets under way, and is prevented by stress of weather from getting clear of the harbor, this would be no breach of a warranty "to sail," but is one of a warranty "to depart." And the terms "final sailing," 2 or being "despatched

1

1 Moir v. Royal Exchange Ass. Co., 3 M. & S. 461, 6 Taunt. 241, 1 Marsh. 576, 4 Camp. 84. In this case some stress seems to have been laid upon the fact that the use of the word "depart" in the policy was a deviation from the usual prac tice, which was to use the word "sail."

In Van Baggen v. Baines, 9 Exch. 523, 25 Eng. L. & Eq. 530, a question arose as to the meaning of the following provision in a charter-party : "Sail and proceed from Amsterdam with all convenient speed to Liverpool, to leave Amsterdam not later than all. March." It was in evidence that Amsterdam was an inland port, and that vessels sailing from it had to pass through a canal about sixty miles in length, to the port of departure called Nicuve Diep. Between these places vessels are towed by horses, and frequently take in their ballast at one of the villages on the route, though it may be taken in at Amsterdam. The vessel sailed from Amsterdam on the 31st of. March with part of her ballast on board. The rest was taken in at a village on the canal, and the vessel did not sail from thence till the 3d of April. It was held that the charter-party was complied with. Parke, B., said: "In Moir v. Royal Exch. Ass. Co., the word 'depart' was held to mean something more than 'sail,' but that depended on the language of the policy. Cases have been cited as to the meaning of the word 'sail,' but they have no application to this case, because here there is no warranty as to sailing from Amsterdam. The whole question turns upon the meaning of the word 'leave,' and not on the words 'sail and proceed.'"

2 This is shown by the case of Roelandts v. Harrison, 9 Exch. 444, 25 Eng. L. & Eq. 470. The vessel was in a dock at Cardiff, ready for sea, and had her clearances from the custom-house. There was communication from the dock to the sea at highwater by means of dock gates, but from these down to the low-water mark there was a ship channel, where vessels were towed by steam-tugs, and were liable to be stopped by the harbor-master. The vessel proceeded from the dock gates along the ship canal, and then took the ground, and afterwards was carried back to the dock gates, where she grounded and was finally lost. By the charter-party three fourths of the freight were payable on the final sailing of the vessel from her port of loading, and the question arose whether it was due under the circumstances of this case. Parke, B., said: "The question is, whether that period of time had arrived at which three fourths of the freight was to be paid. If it had been three fourths to be paid at the time of sailing of the vessel from the port of lading simply, then, according to several cases on the insurance law, the sailing is determined to be that period of time when the vessel breaks ground, being at that time fully fit for sea, having the cargo on board which she intends to carry, with a competent crew, and having permission to leave, by having the custom-house clearances on board. If that had been the criterion in this case, we think the vessel might possibly be considered as having broken ground; but that is a point of some doubt. Certainly, she was fit for sea in every other respect, and probably a warranty to sail by a given time would have been complied with; but we all think, upon reading this charter-party, that something more is meant than the sailing of the vessel, because they use the term 'the final sailing of the vessel,' and we are not at liberty to reject that term, and we must consider that it is adopted with reference to the particular port of Cardiff where the vessel is to take on board her cargo, and that it

from" a place1 mean something more than is expressed by the word sailing.

E. Of Particular Warranties and Stipulations.

A great variety of warranties and stipulations have been occasionally introduced into policies of insurance, and much litigation has grown out of them. The warranty of the condition and location of the vessel, usually refers to her crew, or her furniture or equipments, or her armament; but all these things are far more frequently left to the implied warranties to be spoken of presently. Sometimes an express warranty refers to the place of the ship; as "warranted in such a harbor," or insurance from a place where the ship now is ;" and this means that at the date of the policy, or rather when the insurance is actually made, the ship is at the warranted place. And if there be insurance at or from a certain port, with "warranted in port," this means the port of insurance, unless another meaning is clearly to be gathered from the policy. A warranty that a vessel

means something more than merely having the clearances on board and being ready, and that it means her final departure from that port, and being out of the limits of that artificial port, and being at sea ready to proceed upon her voyage. . . . . And with reference to the circumstances of the port, we do not think this vessel can be considered as having finally sailed from her port of lading."

....

1 In Sharp v. Gibbs, 1 H. & N. 801, 40 Eng. L. & Eq. 383, there was a stipulation in the charter-party that if the ship should be "despatched" from Australia within twenty-one days after her arrival, the owners should be entitled to a higher rate of freight than that previously agreed on. The vessel sailed within the time mentioned, but after proceeding a short time was obliged to put back on account of the insubordination of the crew, and did not finally depart till after the twenty-one days had expired. Held that she had not been "despatched" within the meaning of that phrase in the charter-party.

2 Callaghan v. Atlantic Ins. Co., 1 Edw. Ch. 64.

3 Kenyon v. Berthon, 1 Doug. 12, note. In Colby v. Hunter, 1 Moody & M. 81, 3 Car. & P. 7, the insurance was from Hamburg to Vigo. The ship was warranted in port on the 19th October. She was in a port, but not that of Hamburg. It was contended that this satisfied the warranty; but it was held otherwise, Lord Tenterden, C. J., remarking that, "if the underwriters had been satisfied with the more general warranty contended for, the usual warranty of "safe on 19th of October," would have been the sufficient and proper mode of expressing it."

If the policy had been on time, no terminus a quo being mentioned, the construction contended for would probably have been adopted.

was well on a certain day, has been held to be satisfied by proof that she was so at any time during the day.1

A policy on "lawful goods" has been held to cover contraband goods. And a warranty that the vessel "shall have no contraband goods on board," does not refer to illicit trade at the port of destination, but merely to such goods as are contraband of war.3

The rotten clause, as it is called, is inserted in many policies. This provides that if a ship, on a regular survey, shall be declared unseaworthy, by reason of being rotten or unsound, the underwriters shall be discharged. Under this clause it is settled that the survey must find the rottenness or unsoundness to be the sole cause of the unseaworthiness; that the underwriters are discharged if the vessel be found rotten at the time of the survey, without reference to her condition when the risk commenced; that the survey need only state facts from which it can be inferred that the unseaworthiness arose solely from rottenness, and need not conform exactly to the expressions used in the policy; that it is sufficient if the survey be made in a reasonable time after the termination of the voyage; and that the report of the surveyors on a regular survey is conclusive upon the parties. As to what constitutes a regular survey, it has

1 Blackhurst v. Cockell, 3 T. R. 360.

2 Seton v. Low, 1 Johns. Cas. 1; Juhel v. Rhinelander, 2 Johns. Cas. 120; Depeyster v. Gardner, 1 Caines, 492. See also, Skidmore v. Desdoity, 2 Johns. Cas. 77; Richardson v. Maine F. & M. Ins. Co., 6 Mass. 102.

3 Vandevoort v. Smith, 2 Caines, 155. In regard to the origin of this warranty, see note to Seton v. Low, 1 Johns. Cas. 1, 15.

* Innes v. Alliance Mut. Ins. Co., 1 Sandf. 310; Haff v. Marine Ins. Co., 8 Johns. 163; Griswold v. National Ins. Co., 3 Cow. 96; Armroyd v. Union Ins. Co., 2 Binn. 394; Watson v. Ins. Co. of N. A., 2 Wash. C. C. 152. In Rogers v. Niagara Ins. Co., 2 Hall, 86, the defendants pleaded that the vessel sought a port of necessity, that a regular survey was had, that the survey found that certain parts of the vessel, enumerating them, were rotten, that other parts were so defective that they would require to be shifted, that the repairs would amount to $3,000, and that in the opinion of the surveyors the vessel was unworthy of repairs, and would not sell for the amount of the bills. On demurrer, this plea was held to be a good bar to the plaintiff's action. 5 Dorr v. Pacific Ins. Co., 7 Wheat. 581.

Brandegee v. National Ins. Co., 20 Johns. 328; Steinmetz v. U. S. Ins. Co., 2 S & R. 293; Rogers v. Niagara Ins. Co., 2 Hall, 86. 7 Griswold v. National Ins. Co., 3 Cow. 96, 98.

8 Dorr v. Pacific Ins. Co., 7 Wheat. 581.

been held that one made by surveyors, appointed by the American consul at a foreign port is such. So is one by surveyors under a State law, there being no act of congress upon the subject. If the survey is instituted at the instigation of the master, it is conclusive upon the owners of the vessel.3

If the assured warrants that "orders will be given that the ship shall not cruise," he must explicitly direct the captain not to cruise, and the fact that such orders might be inferred from the instructions is not sufficient.4

A warranty that on a voyage described, the assured shall have a passport from a particular person is only satisfied by a passport for the whole voyage, and it must be such a one as is usually given.5

A stipulation to claim, as neutral, in case of capture, a belligerent vessel sailing with neutral papers, is valid, and if not performed, the insured cannot recover.6

In addition to these warranties and stipulations there are some which we have already considered, such as the stipulations in respect to assignments, and clauses relative to prior and subsequent insurances.8 There are also others which have been introduced from time to time limiting or affecting the common law rights and liabilities of the parties. These we shall treat of hereafter.

1 Innes v. Alliance Ins. Co., 1 Sandf. 310.

2 Janney v. Columbian Ins. Co., 10 Wheat. 411. In Dorr v. Pacific Ins. Co., 7 Wheat. 581, the court said: “ A regular survey must, therefore, in every instance, be such as is known to the laws and customs of the port in which a vessel happens to be."

Janney v. Columbian Ins. Co., 10 Wheat. 411; Dorr v. Pacific Ins. Co., 7 id. 581; Polleys v. Ocean Ins. Co., 14 Maine, 141.

4 Ogden v. Ash, 1 Dall. 162.

5 Bulkley v. Derby Fishing Co., 1 Conn. 571.

Coolidge v. Blake, 15 Mass. 429. In Thatcher v. Bellows, 13 Mass. 111, the assured agreed, in case of capture, to claim and prosecute as Spanish property, until condemnation in the High Court of Admiralty, or acquittal. And the assurers agreed to contribute to the expenses, according to their respective interests. Held, that the underwriters were not bound to advance funds to prosecute the appeal.

7 See ante, p. 45.

* See ante, p. 96.

SECTION II.

OF IMPLIED WARRANTIES.

There are many important warranties which are seldom expressed because they are always implied; in other words, it is not necessary that the parties should make them, because the law makes them for the parties. By far the most important of these, is the warranty of sea-worthiness. Every person who proposes to any insurers to insure his ship against sea perils, during a certain voyage, impliedly warrants that his ship is, in every respect, in a suitable condition to proceed and continue on that voyage, and to encounter all common perils and dangers with safety. And this applies to every insurance on a voyage policy, whatever be the interest insured. And in one case where the insurance was effected by salvors on a vessel at and from a certain port to another, the vessel being described in the policy as having been abandoned by her original crew and taken into the port at which the risk was to commence, by the salvors in whose interest the policy was declared to be effected, the court held, that a plea, that the vessel was unseaworthy at the time of sailing, was good.3

1 In Small v. Gibson, 16 Q. B. 141, 3 Eng. L. & Eq. 299, 305, Parke, B., said : "The late Lord Abinger used to say (not judicially) that the warranty was implied from the use of the term 'good' in the policy." The learned judge then goes on to show that this is not correct, and that the use of the word is neither an express nor an implied warranty of sea-worthiness.

2 In Dixon v. Sadler, 5 M. & W. 405, 414, Parke, B., states the law as follows: "In the case of an insurance for a certain voyage, it is clearly established that there is an implied warranty that the vessel shall be sea-worthy, by which it is meant that she shall be in a fit state as to repairs, equipment, and crew, and in all other respects, to encounter the ordinary perils of the voyage insured at the time of sailing upon it.” See also, Wedderburn v. Bell, 1 Camp. 1; Myers v. Girard Ins. Co., 26 Penn. State, 192; Cincinnati Mut. Ins. Co. v. May, 20 Ohio, 211; McCargo v. Merch. Ins. Co., 10 Rob. La. 334; Prescott v. Union Ins. Co., 1 Whart. 399. If insurance is effected on a floating dock there is an implied warranty that it is sea-worthy, well built, staunch, and capable for the business in which it is to be employed, fitted with machinery, and well protected against accidents arising from the ordinary effects of the elements in which it is to be used. Marcy v. Sun Mut. Ins. Co., 11 La. Ann. 748.