CT. OF APP.]

carrying goods in his own ship, and nothing remained to be done with the goods except to land them, and he were to sell the ship and transfer it by bill of sale to a purchaser, can it be contended that there would be any freight to be paid to the purchaser in respect of the voyage that had been already performed? Therefore I am clear that the mortgagee has no right to the accruing freight, unless he can find a contract in existence at the time when he takes possession, by which freight was to be paid to the mortgagor.

Now we must examine the facts of this particular case. The goods were shipped in California on owner's account, but Messrs. Parrott did not part with the property of their goods in California, because they were to be paid by bills drawn by the master on London, but they took a bill of lading making the goods deliverable to their own order; and, therefore, it is quite clear that the property in the goods would never pass to Morison until the bills of exchange were paid. In the meantime there was a perfectly good contract to carry between Morison and Parrott, which was witnessed in the ordinary way by the bill of lading, making the goods deliverable on payment of a nominal freight. Now it is obvious why this was so, because otherwise Parrott would have had no good security for his goods; if he had inserted in the bill of lading the ordinary freight from California to England, he would have run the entire risk of any fall in price during the voyage; therefore he inserted a merely nominal freight, so that unless the fall in the price of wheat was so great that the price in England actually fell below what was its price in California, he would be secured. Now it was admitted by Mr. Herschell, and he could not but admit it, that as far as that contract was concerned, it was perfectly valid, and the security of Parrott never could be interfered with by the alleged rights of the mortgagee taking possession of the freight; and that if these bills had been dishonoured and never taken up, Parrott would have been entitled to have obtained the goods on payment of the nominal freight for his security, in order to obtain his purchase-money. That being the state of things while the goods were in the course of the voyage, Morison entered into a contract for the purpose of providing the money to take up these bills of exchange, and the nature of that contract is stated in the 11th paragraph of the case. The contract in substance is this, that in consideration of the defendants advancing the money necessary to pay off Parrott, they were to receive Parrott's security, and the bills of lading were to be assigned to them. Now there is not a question, as it appears to me, that it was perfectly competent to Morison to make that contract, and that the mortgagees of the ship could not interfere with it at all; when he came to borrow money for taking up the bills it was perfectly competent to him to put the persons who advanced it in the same position as Parrott was, namely, that they should have a security upon the entire price of the goods, subject only to the nominal freight.

But then we find that the defendants not only advanced the sum necessary to take up the bills, but they advanced a further sum upon the same security. And the whole case for the plaintiffs depends upon this, that it is said, by the blundering mode in which Morison and the defendants carried out that contract, they failed in

[CT. OF APP.

giving the defendants the full security on the whole value of the goods; but, without the smallest necessity, made a new contract for the carriage of the goods for freight, so as to enable the mort gagees when they took possession of the goods to say "that freight belongs to us, it is an accruing freight, we are entitled to it." Now this question depends entirely on the construction to be put on the document of 19th Feb. 1875. It was part of the arrangement that the defendants were to sell the goods; and accordingly they sold them in the ordinary way in which goods at sea are sold; they made a contract for cost freight and insurance, and there can be no question that this document is in substance a contract of sale by Morison, made through the agency of Burrows and Perks, the defendants, to Henry Jump and Sons. It begins "Bought of Messrs. John Morison and Co. through Messrs. Burrows and Perks for Messrs. Henry Jump and Sons, Liverpool, a cargo of Californian wheat," &c., which is as plain as anything can be, a contract for sale and nothing else, "Shipped per Stonehouse . . . . for orders." Now if it had stopped there it is perfectly plain that it would be a contract for the sale of the whole of this quantity of wheat at the rate of 438. 6d. a quarter, which was to include cost, freight, and insurance, that is to say the purchase. money was to be 438. 6d., and in respect of that purchase-money the purchaser was to be entitled to have the goods delivered to him, and was entitled to have policies of insurance, securing him against the risk of the goods being lost at sea, and the whole of that 43s. 6d. per quarter was to be purchase-money. But then it goes on "Vessel to discharge afloat," &c., "Invoice quantity. . . . whose decision is to be final." Now if the contract had stopped there it would be simply a contract in the ordinary way of sale for cost, freight, and insurance, and the only freight to be paid would have been the nominal freight; and the purchaser would have had to pay the whole of the rest of the price, except the nominal freight on transfer of the bill of lading and policies of insurance. But there is an objection to this, for when a man buys for cost, freight, and insurance, he expects that there will be a considerable portion of the purchase-money to be devoted to the payment of the freight, and that it will not be necessary for him to pay that portion of the purchase-money until the goods actually arrive. Of course in the ordinary case of a contract ior cost, freight, and insurance, it is all purchase. money as between the vendor and the purchaser, but a part of the purchase-money has to be applied in paying the freight which is alleged to be due from the vendor to the shipowner, and the charge on the goods which is necessary to be paid in respect of the same. Then, inasmuch as the purchaser would expect the ordinary amount of freight not to be paid until the ship's arrival, and only to be paid on the delivery of the goods, this clause has been inserted (and the whole of the case in my opinion turns on the construction to be put upon this clause): "As cargo is coming on ship's account freight is to be computed at 558. per ton of 2240lb., and invoice to be rendered accordingly." What does this mean? The object of it is perfectly plain; it is explained by the next paragraph (17). The object was that the purchaser might have the usual advantage of having a sum equal to the amount of the freight not pay

CT. OF APP.]

able until the arrival of the ship and delivery of the goods; that is the sole object which the parties had to accomplish.

Now, the question is, is it freight although it is called freight? In my opinion it is not freight unless it involves a contract to carry. If there is no contract for the carrying of the goods, although you may call the sum to be paid freight, in my opinion it is not in point of law freight within the rule that the mortgagee is entitled to the accruing freight. Now, Mr. Herschell argued with great ingenuity and ability that it was a contract for freight for this reason: he said the goods are shipped on owner's account; there is no contract for carriage therefore at all, but whilst the goods are at sea if the shipper chooses to sell there is nothing to prevent him, being the shipowner as well as the owner of the goods; when he sells the goods that passes the property, and he enters into a contract for the carriage of the goods for freight; and it is said that there was a new contract for carriage from the time when the contract of sale was executed. Now, I am of opinion that is not the true effect of the instrument for this reason: the argument seems altogether to overlook the fact that it is quite incorrect to say that in this case there was no previous contract of carriage. There was a perfectly good contract of carriage contained in the bill of lading, and, as I have already shown, it was not a mere sham, as if the goods had been really the shipowner's own goods at the time he shipped them. A bill of lading under those circumstances is often executed, but still in point of fact it would be a sham, and would not be any evidence of any real contract whatever. If it operated as a contract it would only operate as a contract by way of estoppel. But that was not the case here. There was a perfectly good contract between Morison and Parrott as witnessed by these bills of lading, and the purchasers of the goods, Jump and Sons, were, according to the true construction of this contract, to have the bills of lading transferred to them as soon as the bills of exchange were taken up. Until the bills of exchange were taken up the goods remained in point of law the property of Parrott. The moment the bills of exchange were taken up the bills of lading were to be transferred to Jump and Sons, the purchasers, and they obtained the bills of lading, and they admitted the contract to carry, and if it had become necessary for them to maintair an action on the ground of the goods having been damaged by some fault of the shipowner at sea, or if he did not deliver them in the like good order and condition in which he received them, the damage not having been caused by any of the excepted perils, they could have maintained an action on the bills of lading under the Bills of Lading Act (18 & 19 Vict. c. 111.) And what could they want with a new contract to carry, the effect of which would be that there would be two contracts of carriage, one assignable, contained in the bill of lading, which Jump and Sons could and did transfer by transferring the bill of lading; and the other an nntransferrable contract of carriage, because, not being contained in the bill of lading or in a negotiable document, it could not be transferred? therefore that would be a contract of carriage wholly without necessity, and the only reason for it is that they describe this sum, which is really purchase-money, as freight. I am of opinion that

[CT. OF APP.

the court must look at what it really is, and what it really is is purchase-money. The real effect of the contract is simply this, that the purchase-money being 438. 6d. per quarter, a certain sum is to be paid at once, and the remainder, namely, a sum amounting to 55s. per ton, is only to be paid on the arrival of the ship. That was the only object they had to effect, and the mere fact that they called the money freight ought not to prevent the carrying out of their object, particularly as the effect of not construing the contract in that way would be to deprive the defendants of the security which Morison was perfectly entitled to give them, and which they have got. That being the true construction, Morison, no doubt for the purpose of securing the defendants, executes the instrument set out in paragraph 20 of the case. There, again, the money is called freight, but its being called freight cannot alter the real nature of the thing; it still was part of the purchase-money, and nothing else; it was part of the value of the goods which, by previous arrangement with the defendants, Morison had agreed should be assigned to them in consideration of their lending him the full amount of the purchase-money, and enabling him to take up the bills. Then the defendants had advanced the rest of the money to pay the bills, and some sum beyond, and to secure them they were to receive the rest of the purchase-money, and this assignment, though they call it freight, is for that purpose, as is shown by this, that it expressly authorises Jump and Sons to pay this sum, which they call freight, to Burrows and Perks. Therefore, though it is perfectly true that there was a cargo on board, and that Morison had a lien on that cargo in respect of the sum of money to be paid on its delivery, in my opinion he had that lien, not as shipowner in respect of freight due to him on the contract of carriage, but as being the unpaid vendor for that portion of the purchase-money.

That being so, I am of opinion that there was no freight except the nominal freight on the bills of lading; there was no accruing freight in respect of the cargo at the time when the mortga gees took possession. Therefore, I am of opinion that as there was no accruing freight the court was not bound to construe this as being a contract for freight for the purpose of giving the mortgagee of the ship a better security to the prejudice of the defendants.

BAGGALLAY, L.J.-I am entirely of the same opinion, for the same reasons.

BRAMWELL, L.J.-I am entirely of the same opinion.

A mortgagee or shipowner taking posses. sion of a ship before the voyage is ended, and finding goods on board which have been carried on the terms that freight should be paid, and on which there is a lien, is entitled to that freight, and so the plaintiffs were here. The question is whether they were entitled to 18. per ton or 558.; in my judgment they were entitled to 18. only. Now, freight supposes a contract, and two parties to it, a debtor and a creditor; the one who is to carry the goods, and the other who is to pay freight for them. Is that the case here? Mr. Herschell says, "Yes, it is; there has been a contract of carriage entered into between these two parties, Morison, the shipowner, and Jump and Sons the buyers of the goods, and it was this contract, "that whereas my ship and the cargo on board are now in mid-ocean,

CT. OF APP.]

I will undertake to carry the goods from wherever they are in that ship, and deliver them to you, Jump, at a freight of 558., putting myself in the situation of a carrier, the voyage commencing wherever the ship may be at the time the contract of sale is entered into, and putting you in the situa tion of the freighter? That is a very ingenious argument, but it is wholly unfounded in fact, and it results from looking at a word instead of looking at the substance of the thing. There really is no pretence for saying that in reality there was a contract for carriage between these two parties, so that Jump would be entitled to say, "I gave you 558. a ton; you have not performed your contract of carriage duly because something has been done wrong by the captain and the sailors, which has damaged my goods, not within the excepted perils." There was no such intention in their minds, but they have used the word "freight," for a reason which is obvious, because when a person buys a floating cargo, as a rule, if it is not the cargo of the shipowner, he does not pay the freight unless the cargo arrives, and does not pay it until the cargo arrives. Therefore, Jump and Sons desired to purchase the cargo upon the same terms as they would have done if Morison had not been the shipowner. That is why this is put in, and it is so stated. Suppose, instead of putting in the word "freight" they had put in " be in the light of" freight," or some such expression (that is to say, the sum not to be payable unless the ship arrives, and only when the ship does arrive), "shall be taken at 558.," what then? The word "freight," which is the very word that has given rise to this controversy, would not have existed, but they use the word, as is commonly done, by people not foreseeing the mischievous consequences which may arise from want of precision in their expressions. The truth is that this is a contract for the sale of goods. If, as Lord Justice Mellish says, Jump and Sons had resold the cargo (which they did), the same expression would be used; and yet would it be pretended that the purchaser of the cargo intended to enter into any contract of affreightment, or for paying freight as such? And what difference is there that in this case the purchase is from Morison? And why should we put a different interpretation upon this contract to what we should upon any other contract for the purchase of goods from a shipper who was not a shipowner?

a sum to

Now any lien that the defendants or Morison would have had in this case would, in my opinion, have been a lien for freight to the extent of 1s. per ton only, and as to the rest, a lien as an unpaid vendor of the goods. And it should be remembered, in considering this case as to the interpretation of this contract, to which the plaintiffs are no party, that the defendants' title had accrued. The sale was on the 19th Feb., and the bills were not paid until the 22nd, but the agreement between Morison and the defendants, under which the title accrues, was some time in December or the beginning of January, as is seen in paragraph 11, and accordingly, on the 4th Jan. the defendants advanced to Morison 3000l., and shortly afterwards, in pursuance of the arrangement then made, received the policies, so that the defendants' title accrued certainly as early as the 4th Jan.; and at that time, of course, they would have been entitled to say to Morison, "You shall not sell upon any terms to make a larger sum than 1s. per ton pay

[CT. OF APP.

able for freight." They would be entitled to say so obviously, or they would have lost their security. If that be so, the suggestion is that the defendants nevertheless have flung away security to the extent of upwards of 3000l. I am of opinion that is not so,and that there was no contract of freight here except for the 18. per ton. And it is a convenient thing that we should hold this to be so, because, although no doubt it may be very useful that people should be encouraged to lend money on mortgage of ships, yet, if they choose to leave the mortgagors in possession, it is also very desirable that the mortgagors should have the power to deal with the ships in the most advantageous way; and there can be no doubt that occasionally it is very advantageons that shipowners who cannot get a freight should themselves have a mercantile venture, as in this case. Now Parrott in this case would not have shipped unless there had been this margin, for the reasons given, and the defendants would not have taken up these bills unless they knew there was a safe margin. They knew they could get Califor nian wheat here freight free, which was a guarantee against any loss, unless there was a very outrageous fall indeed. Now, suppose these bills had been dishonoured, what freight would have been payable then? Suppose the defendants had not advanced the money to take them up, though the contract of sale had taken place, the shipper's agent in that case would have been only held liable for 18. per ton; then why should the defendants be liable for more?

Upon those grounds I am of opinion that the judgment should be reversed.

But there is another point to which I should like to call attention. (It is respectful to the court below to say that this matter in their judgment was almost assumed, and as it seems to me without adequate reason being given for it.) The cases show that freight cannot be assigned as against the mortgagee of the ship, that is to say, if Morison had been minded to raise money upon his right to the 18. freight, he could not have done so to the injury of the mortgagees. But this is not an assignment of freight. I think, as I have said already, that it is not a creation of freight at all, but, assuming that freight was created, we must take it that it was created by a contract between Morison and Jump and Sons, by which Jump and Sons are to pay freight not to Morison but to the defendants. It is not the case therefore of assigning freight and giving an equity, but it is a case of making a sort of trilateral bargain, by which, to my mind, the defendants would be entitled to the freight from Jump and Sons. It seems to me that although if the 55s. freight had previously been brought into existence it could not have been assigned to the detriment of the mortgagees, yet it might be brought into existence upon the terms that Morison should never have it, but the defen. dants should. I am of opinion that there was no contract of carriage except for 18. per ton, and if in any point of view it can be said there was, the freight was brought into existence to be paid not to the shipowner but to the defendants.

Judgment reversed.

Solicitors for plaintiffs, Freshfield and Williams. Solicitors for defendants, Lowless and Co.

(Before JAMES, BAGGALLAY, BRAmwell, and
BRETT, L.JJ.)

April 30 and May 1, 1877.

TURNBULL AND OTHERS v. JANSON. Marine insurance-Warranty of seaworthinessVessel built for inland navigation—Insurance for ocean voyage.

Where a vessel built for inland navigation is insured for an ocean voyage there is an implied warranty that she shall be made as seaworthy for the voyage as such a vessel can be made by ordinary available means.

A steamer of light construction, built for inland navigation in Trinidad, was insured for the voyage out. On the voyage she broke in two at

sea, and went down. In an action on the policy the jury found that the vessel was not seaworthy as an ocean going vessel, and was not made as seaworthy as she might have been by ordinary available means.

Held, affirming the judgment of Cleasby, B., that on these findings the defendant was entitled to judgment.

APPEAL from the judgment of Cleasby, B. at the trial. The action was brought on a valued policy of insurance, "at and from Clyde to Trinidad, and while in port for thirty days after arrival thereat, including risks of trial trips," on the steamer Mary, to recover for a total loss. The defendant pleaded unseaworthiness, that the ship was not lost by the perils insured against, and misrepresentation and concealment. The vessel was described as follows in a letter written on the 22nd Sept. 1874 by the plaintiffs' firm to the brokers employed to effect the insurance, and shown by them to the defendant; This is a new passenger steamer of light draught such as Arthur, Alice, &c., dimensions 210ft. long, 25ft. broad, and 8ft. 6in. deep. . . . . She is strong with iron hull and deck, and will be made snug in every respect." The brokers also, in consequence of another letter received from the plaintiffs, told the defendant that she was very strong in scantling. The Mary was built for navigation in shallow water, being intended to carry mails and passengers in the Gulf of Paria, which is an almost land locked gulf in the Island of Trinidad. Her draught of water was only 2ft. 3in., and this fact was not expressly communicated to the defendant. The Arthur and the Alice were vessels which had been previously built for similar employment to that for which the Mary was intended, and had been sent out to Trinidad. The Arthur drew 3ft. 6in. of water and the Alice 2ft. 7in. The premium charged by the defendant was 40s. per cent. ; for a large sea going steamer the premium would not have been more than 208. per cent. for the same voyage. By the terms of the policy the vessel was warranted to sail on or before the 15th Oct. 1874. The Mary sailed from the Clyde on the 14th Oct.; owing to heavy weather she put into Belfast Lough, and afterwards into Kingstown Harbour. She left Kingstown on the morning of the 19th Oct., and proceeded on her voyage, until about 4 p.m. on the 21st, when she suddenly broke in two in the open sea, and immediately went down. The weather was fine at the time, and there was not a great deal of wind, but rather a heavy sea. At the trial, which took place in December 1876, at Guildhall, before Cleasby B. and a special jury, a number of witnesses were called on both sides who gave VOL. III, N. S.

[CT. OF APP.

evidence as to the strength of the vessel and as to the means which were adopted to strengthen her for the ocean voyage, and as to what other means might have been adopted for that purpose.

The following are the questions which the learned judge left to the jury, and the answers which the jury gave to them:

1. Was the vessel proposed for insurance having regard to the particulars given in the letter correctly described as very strong in scantling, of 22nd Sept. ? Yes.

2. Was the draught of the vessel, 2ft. 3in., a fact material to the risk in this case, in addition to the facts communicated to the underwriters ? No.

3. Were the facts stated to the underwriters

equivalent to the statement that the vessel had a draught of 27in. ? Yes.

4. Was the vessel seaworthy as an ordinary ocean-going sea vessel? No.

5. Was she made as seaworthy as she might have been by ordinary available means? No.

6. Was the loss of the vessel caused by the unseaworthiness of the ship, or by any perils of the sea? Perils of the sea.

On these findings the verdict was entered for the defendant.

Ocean

Sir Henry James, Q.C., and Watkin Williams, Q.C. (J. C. Mathew with them) for the plaintiffs.The warranty of seaworthiness for an voyage is not to be implied in a case like this where everything is known and disclosed. It was brought to the knowledge of the underwriters that this was a vessel intended for inland navigation, and they were content to take the risk with that knowledge. The reason why a warranty of seaworthiness is implied in a voyage policy is explained by Maule, J., in Gibson v. Small (4 H. L. C., at p. 388), where he says: "It appears to me that the foundation of the admitted rule that in a policy on a voyage there is an implied condition or warranty that the ship was seaworthy at the beginning of the voyage is that the parties to the policy are to be considered as contracting with re

ference to what is usual and of course in the transaction which is the subject of the policy: and that it is usual and a matter of course to make a ship seaworthy before the commencement of a voyage.' This reasoning does not apply to an exceptional case like the present. In Burgess v. Wickham (1 Mar. Law Cas. O. S. 303; 3 B. & S. 669; 33 L. J. 17, Q. B.), which was a case of a vessel very similar to this, the plaintiffs were held entitled to recover, although she was not seaworthy as an ocean going vessel. The expression used by Cockburn in that case (3 B. & S., at p. 680) that the "underwriter is entitled to expect that the ship would be as seaworthy as it could be," is only an obiter dictum. There is no implied warranty that the owner is bound to use all possible means to strengthen the ship. The reasons given in the House of Lords in Dudgeon v. Pembroke (ante, p. 393; 36 L. T. Rep. N. S. 382; L. Rep. 2, App. Cas. 284) to show why there is no implied warranty of seaworthiness on a time policy apply also to a case like the present. [JAMES, L.J.-Can you say that there is no implied warranty of seaworthiness at all?] They also referred to

Arnould on Marine Insurance, vol. 2, part 2, c. 4. 2 Duer on Marine Insurance, 566. Clapham v. Langton, 2 Mar. Law Cas. O. S. 54; 5 B. & S. 729; 34 L. J. 46, Q. B.; 10 L. T. Rep. N. S. 875. 2 F

[BRETT, L.J., referred to Biccard v. Shepherd (14 Moore P. C. Cas. 471; 5 L. T. Rep. N. S. 504).]

Butt, Q.C., Cohen, Q.C., and Macleod for the defendant, were not called on.

JAMES, L.J.-I am of opinion that the point in this case is settled by the decision in Burgess v. Wickham (ubi sup.), and it is settled according to common sense and sound principle. The facts there were nearly the same as the facts in this case. It must be held that there is in every voyage policy an implied warranty of seaworthiness, but in that case a distinction was made in favour of the shipowner, for the court said that it was not an inflexible warranty, but must be considered with regard to the subject matter of the insurance, and, looking at the nature of the ship, or of the voyage, it might be limited to a certain extent. As Blackburn, J. said, it is a warranty secundum quid. That exception was introduced in favour of the shipowner, and here it is tried on behalf of the shipowner to extend the limitation so as to make it amount to an absolute exclusion of the warranty of seaworthiness in the present case. I put the question in the course of the argument whether the contention on the part of the plaintiffs was meant to go as far as that, but I could get no direct answer. According to the true meaning of the argument it is said that there was no warranty, but we cannot carry the limitation of the general doctrine to that extent. The proper qualification, which is expressed in Burgess v. Wickham, and on which the question put by Cleasby, B. to the jury is founded, is that the ship need only be as seaworthy as such a ship ought to be made for such a voyage. It is true she was meant to pass her life in a gulf when she got to Trinidad, but she had to get there, and she ought to have been made as seaworthy as she reasonably could be made for the voyage out there, which was the voyage for which she was insured. I am of opinion that the question put to the jury was right, and their finding excludes the plaintiff's contention.

BAGGALLAY, L.J.-I am of the same opinion for the same reasons.

BRAMWELL, L.J.-I am of the same opinion, and for the same reasons certainly, but I wish to add a few observations with regard to the difficulty that has been raised as to the introduction of parol evidence. (a) This is an insurance of a particular vessel, and I think the policy may be read as if the vessel were described in it as well as named, and if that were done why should there be no warranty of seaworthiness? What would there be in the terms of the policy inconsistent with a modified warranty of seaworthiness, and why must not that vessel which is named or described in the policy be made as seaworthy as such a vessel can be made for the voyage for which she is insured? I think the expression used by Cieasby, B. in leaving the case to the jury was a happy one, and where is the contradiction between the words which he used and the terms of the policy? It is true that the vessel need not be made as seaworthy as an ocean-going vessel ought to be for such a voyage, but if the argument for the plaintiffs were correct the consequences which would follow would be absurd, for the vessel might go to sea without a compass, if a compass would not be (a) See Clapham v. Langham (ubi sup.).

[CT. OF APP.

required in the gulf where it was intended that she should be used when she got to Trinidad, or with a crew which would be enough for what she had to do out there, but would be too few for the ocean voyage. These are unreasonable consequences, and there is no reason why they should exist, and there is nothing to exclude the warranty of seaworthiness, which is an ordinary incident of a voyage policy. If the question were whether in her permanent build she had to be built more strongly, because she was built in this country than she would have been if she had been built at Trinidad, I should have some misgiving and doubt, but that is not the objection taken here. The defendant here says that the plaintiffs did not make the vessel stronger by temporary practi cable means, that is by putting in temporary strengthening for the voyage, which could be removed afterwards. I am of opinion that there is a warranty of seaworthiness here just as much as there is a warranty to take out a sufficient crew for the voyage, and both on reason and authority the defendant is entitled to judgment.

BRETT, L.J.-If this had been the first time the present question had been raised, I should have wished for the assistance of Mr. Butt and Mr. Cohen to enable me to arrive at a right conclu. sion, but the point has already been discussed in Burgess v. Wickham, in Clapham v. Langton, and in Dudgeon v. Pembroke. I am of opinion that in every voyage policy, unless the contrary is expressed, there is an implied warranty of seaworthiness. There is not such a warranty in a time policy, unless it is expressly so stated. All voyage policies are in the same general terms, but the warranty is probably implied from custom, because it is held that all reasonable shipowners and underwriters would contract on such an understanding. But however it arose, now, as a matter of law, every voyage policy contains a warranty of seaworthiness, unless it is otherwise expressed. The warranty is to be applied to the subject-matter of the particular policy, and there are different degrees of seaworthiness: it varies according to the place, according to the voyage, according to the time of year, according to the nature of the cargo, and of the ship herself. and it must be fulfilled so far as a ship of the kind insured in the particular policy can be made to fulfil it. If a ship of twenty-four tons is insured for a voyage from Liverpool to New York, she cannot be made seaworthy in the same degree as a ship of 400 tons sailing on the same voyage would be, but she must be made as seaworthy for the voyage as a ship of twenty-four tons can be made, and the same would apply to vessels of the class of the vessel in the present case. plaintiffs were not asked to make her another vessel, but only to alter her for the voyage. There are means of strengthening her for the voyage so as to leave her the same kind of vessel, and the evidence shows how easily this could have been done. It was done in Burgess v. Wickham, and in Clapham v. Langton, and the jury have found that it could easily have been done here, but the plaintiffs did not do it, and therefore did not fulfil the warranty. Blackburn, J., in Burgess v. Wickham, states the law upon this question, and that judgment is affirmed by the decision of the Court of Exchequer Chamber in Clapham v. Langton. We could not decide in favour of the plaintiffs here without overruling both these cases,

The