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.

8 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.2 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 per⚫ formed, the insured cannot recover.

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."

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

* Ogden v. Ash, 1 Dall. 162.

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

6

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.1 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.

3 Knill v. Hooper, 2 H. & N. 277.

This warranty is strictly a condition precedent to the obligation of insurance; if it be not performed, the policy does not attach; and if this condition be broken, at the inception of the risk in any way whatever and from any cause whatever, there is no contract of insurance, the policy being wholly void. Such is the general principle; but it receives in practice qualifications and modifications which will now be considered.

In the first place it should be stated that this sea-worthiness is not an absolute requirement of the law; it may be waived or modified in any way by the parties. Thus, they may doubtless agree that the ship shall be insured whether sea-worthy or not; 2 or that any unseaworthiness, not known to the insured, shall not affect his insurance; but without such a clause the policy is just as much avoided by any actual unseaworthiness which

3

1 Tidmarsh v. Washington F. & M. Ins. Co., 4 Mason, 439; Small v. Gibson, 16 Q. B. 128, 3 Eng. L. & Eq. 290, 305, per Parke, B.; Wallace v. De Pau, 2 Bay, 503, 1 Brev. 252.

2 In Parfitt v. Thompson, 13 M. & W. 392, the underwriters agreed to consider the vessel sea-worthy for the voyage. It was contended by the underwriters that this admission merely precluded them from contesting the fact of her sea-worthiness, in case the loss had happened from the perils of the sea, but that if the loss took place in consequence of her unseaworthiness, they were at liberty to take advantage of that fact as a ground for non-payment of the sum insured. But Pollock, C. B., in delivering the opinion of the court, said: "I cannot assent to the construction of the defendant's admission of sea-worthiness, which has been contended for. It seems to me that that admission enures for all purposes, and amounts to a dispensation of the usual warranty of sea-worthiness. I cannot think the parties intended, that, if the unseaworthiness alone were the cause of the loss, the plaintiff should have no right to recover. It appears to me, that, if the vessel had foundered in a perfectly calm sea, from a leak occasioned by rottenness, on the day after the policy was effected, the underwriters would have been held liable." See also, Phillips v. Nairne, 4 C. B. 343. As to what constitutes a waiver of the implied warranty of sea-worthiness it has been held, that a survey of the vessel for the underwriters, by their agent does not. Danson v. Cawley, Newfoundland Cas. 433; Myers v. Girard Ins. Co., 26 Penn. State, 192. In this last case it was also decided that the fact that the underwriters knew that the vessel was destined for a particular trade, would be no waiver, and the court said: "All the authorities establish that a waiver of sea-worthiness, when not expressed in the contract of insurance, is only to be inferred upon clear evidence that the insurer knew that the vessel was unfit to perform the voyage insured, or that a full representation was made by the assured of the defects of the ship before the completion of the contract." It has been questioned whether advertising to insure goods by particular boats is a waiver of sea-worthiness as to them. Natchez Ins. Co. v. Stanton, 2 Smedes & M. 340. * Vallejo v. Wheeler, Cowp. 143.