With respect to the obligations of the cargo owner, as a general principle he is held not to be bound by the act of the master, unless the former be the owner of both ship and cargo, or cognisant in fact, or by presumption, of the intended violation of the law; or the master be his agent. If the circumstances of the breach point to the conclusion that it has been attempted in accordance with design antecedent to the voyage, the cargo will be held bound; but if, on the contrary, the breach spring out of an unforeseen emergency, then the cargo will be deemed primâ facie innocent of the offence (a). Whether in any case loss or damages arising out of such breaches of the law can be attributed to barratry of the master will depend upon the circumstances.

With respect to the insurance of contraband of war, neutral subjects may, as has been indicated (b), ship and insure such goods without breach of the neutral warranty,-for though the contraband articles are subject to confiscation, the fact of their shipment by individuals does not technically involve a breach of neutrality. But if there be an express warranty against contraband, a breach of this warranty on the part of the assured will of course void the insurance (c). And the policy may also be voided on the ground of concealment of material fact, if it should appear that the underwriter was not informed of the intention to ship contraband, and the circumstances were not such as to charge him with implied knowledge of this intention (d).

The principles on which has to be decided the question of ownership of property in transitu have already been considered under the head Domicile (e). Further illustrations in Arnould's treatise on Marine Insurance (5th ed., pp. 611-614) indicate that a warranty of neutrality is strictly construed by the Courts. A neutral warranty is complied with if the property be neutral at the commencement of the risk, and a subsequent declaration

(a) The Vrow Judith, 1 Rob. 150; The Imina, 3 Rob. 169; The Rosalie and Betty, 2 Rob. 343, 351; The Alexander, 4 Rob. 93; The Elsebe, 5 Rob. 173; The Shepherdess, 5 Rob. 262.

(b) Pp. 160, 188, 200, supra.

(e) Vide Seymour v. Lo. and Prov. Insce. Co., p. 199, supra. Vide also p. 403, infra.

(d) P. 193, supra.

(e) P. 15, supra.

of hostility will not release the underwriter; this is a risk which he must be held to have taken upon himself (ƒ); except that if hostilities should occur between the governments of the assured and of the insurer, the insurance then becomes void as being contrary to the war policy of the country of the insurer (g).

If a ship, not in fact neutral, be so warranted, the contract is void from the commencement, and the underwriter will be discharged, whatever may be the cause of the vessel's loss (h).

It has been explained above (i) that false or simulated papers must not be carried, unless under express licence in the policy. In the same place reference has been made to the consequences of carrying suspicious papers, and belligerent property under a disguise of neutrality.

Neutral goods are not liable to seizure on the fact of shipment by belligerent merchant vessels, so long as such vessels are unarmed and not under convoy; consequently such a shipment is no breach of a neutral warranty of the goods (j).

The warranty of neutrality may be explicit, as "warranted neutral ship and neutral property"; "warranted neutral”: or it may be implied in the description of the vessel, as, for instance, "a Danish brig," "the Swedish ship Sophia," such wording amounting to a warranty that the vessel has the national character thus ascribed to her (k). A vessel so described must carry shipping papers in accordance with any relative subsisting treaties (7). It is, in fact, a standing condition of the neutral warranty that the vessel shall be properly documented, both in accordance with the general requirements of the law of nations, and of any special treaties operating in a particular case (m). The papers generally regarded as necessary proofs of nationality have already been enumerated (n). Failure in this respect

(f) Eden v. Parkinson, 2 Doug. 732.

(g) Vide Arnould's Insce., 5th ed. p. 610, note.

(h) Woolmer v. Muilman, 4 Burr. 1419; 1 Blac. R. 427; Fernandes r. Da Costa, Park's Insce., 8th ed. p. 407.

(i) P. 231.

(j) Arnould, 5th ed. p. 622.

(k) Arnould, 5th ed. p. 589.

(1) Baring . Claggett, 3 B. & P. 201; S. C., 5 East, 398; Lothian r. Henderson, 3 B. & P. 499.

(m) Vide p. 228, supra. () Vide p. 224, supra.

constitutes a breach of neutrality, and voids the policy ab initio ; a result which is also involved by a breach of any other of the neutral obligations set forth above (o). But if a merely transitory breach, involving no loss or injury, should occur, it has been suggested (p) that this should not necessarily absolve the underwriter from a subsequent loss in no way consequent on the breach. For instance, if a master should improperly refuse to produce the necessary documentary proofs of nationality to a belligerent cruiser, such conduct would be a breach of neutral warranty; and if the ship should be condemned in consequence, the underwriter would be discharged; but that if she should be released, and be subsequently lost by perils of the seas, the assured should not be deprived of his indemnity on the mere ground of the previous breach.

In every policy effected on the shipowner's account, the condition is implied that the vessel shall carry the proper proofs of her nationality, quite apart from any question of neutral warranty (q). But failure to comply with this requirement absolves the underwriter only when the vessel is condemned on the ground of want of proper documents (r). already been indicated, it would appear that the underwriter is discharged only when his contract is with the shipowner, not when it is with the cargo-owner (s).

And as has

In considering a foreign condemnation, the grounds of which are not explicitly defined, the Court will examine the sentence as a whole, in order to arrive at the real grounds of the judgment(t). It is held in the United States that whether the grounds of the condemnation by the foreign tribunal be good or bad, the finding of such Court is to be accepted as evidence in actions on policies of insurance. The French Courts decline to accept such judgments as conclusive evidence, and in the British Courts foreign judgments are to be regarded as con

(0) Vide p. 386.

(p) Vide Arnould's Insce., 5th ed. p. 535, and note.

(9) Vide Arnould's Mar. Insce., 5th ed. p. 668.

(r) Price v. Bell, 1 East, 663, 673.

(s) Vide p. 230, supra.

(t) Kindersley v. Chase, Park's Insce., 8th ed. 743. Vide also Arnould's Insce., 5th ed. 631, note.

clusive only as to the points which they profess to decide (u); and the Courts must be satisfied that the ground of the condemnation is such as to forfeit neutrality according to the law of nations, and not, for example, merely according to some national municipal law. A condemnation of the latter kind is not conclusive as discharging underwriters (v).

cause.

"Warranted to sail with Convoy."-It was decided in Hibbert v. Pigou (x) that by convoy is meant a naval force under the command of a person appointed by the Government of the country; the sailing under the protection of a man-of-war not forming part of a convoy not being a compliance with the warranty. The vessels in the convoy receive sailing orders from the admiral, in order that they may know the signals for the places to which they are to steer in case of dispersion by storm or any other just "Generally speaking," said Buller, J., following the judgment of Lord Mansfield in this case, "unless sailing instructions are obtained, the warranty is not complied with; the captain cannot answer signals; he does not know the place of rendezvous in case of a storm; he does not in effect put himself under the protection of the convoy, and therefore the underwriters are not benefited." In the above case the vessel was lost in a violent storm which occurred after she had joined the convoy, but inasmuch as the warranty to "depart with convoy" was absolute, and the vessel had not actually and technically so departed, the underwriters were held discharged. This was an insurance on ship. The underwriters and the insured were, in the words of Lord Mansfield, equally innocent, but the only question for the Court to decide was whether the warranty to "depart with convoy" had or had not been literally complied with. It should, perhaps, be observed that Willes, J., expressed some dissent from such a stringent interpretation of the warranty.

The case of Smith v. Readshaw (y) (1781) seems to have

(u) Bolton v. Gladstone, 5 East, 155. But cf. Hobbs v. Henning, p. 196, supra.

(v) Pollard v. Bell, 8 T. R. 434; Mayne v. Walter, 8th ed. Park's Insce., p. 730. Vide also cases cited in Arnould, 5th ed. pp. 618, 632-634, on this subject generally. (x) 8th ed. Park's Insce., p. 694. See also Smith v. Readshaw, ibid. p. 708. (y) 8th ed. Park's Insce., 708; Lilly v. Ewer, Doug. 72 (1779).

decided that if a ship be warranted to sail with convoy, the warranty must be understood to relate to the whole voyage, and that if, as a fact, the convoy only goes a part of the way, this is not a convoy for the voyage. But this conclusion must presumably be regarded as reversed by the judgment in D'Equino v. Berwicke (2) (1795), when Buller, J., dealing with an argument advanced by counsel for the defendant underwriter, delivered himself thus:

"If Government thought a convoy to the Cape was a sufficient protection to the East India trade, and the usage was for the East India ships to sail with a convoy only to the Cape, and no other convoy was appointed to the East Indies, I should hold that the warranty was complied with; though I agree that if there were another convoy to the East Indies, it would be otherwise."

And if the vessel be separated from the convoy by stress of weather or other circumstances beyond the master's control, the underwriters also remain liable (a).

In Le Thullier's Case (b) it was decided that the warranty to depart with convoy, in the case of a vessel sailing from London, must be held to mean that the vessel was to join the convoy in the Downs; for that there never was a convoy from the port of London. And in a somewhat similar case (c) it was decided to be no deviation for a vessel to depart from the direct course in order to seek convoy, the captain having acted fairly and bond fide. And if a ship duly sails with convoy, and after being driven back to port sails subsequently without convoy, there is no breach of warranty (d).

With respect to sailing instructions, in Victoria v. Cleeve (e), where the vessel insured was captured shortly after joining the convoy, it was contended on behalf of underwriters that there had been a breach of warranty, inasmuch as at the time of the capture the vessel had obtained no sailing instructions. But as

(z) 2 H. Black.551. Vide also De Garey v. Clagget, 8th ed. Park's Insce., 708. (a) Jeffreys v. Legendra, 3 Lev. 320.

(b) 2 Salk. 445.

(e) Gordon v. Morley, 2 Stra. 1265. See also cases cited in Arnould's Insce., 5th ed. p. 501, note.

(d) Laing v. Glover, 5 Taunt. 49.

(e) 2 Stra. 1250.