Whether the convoy be sufficient must depend on the usage of trade and the orders of government; and it is the province of the jury to determine, whether, under the circumstances, the warranty has been satisfied (46).

It sometimes happens, that the force first appointed is to accompany the ships only for a part of their voyage, and to be succeeded by another; at other times a small force is detached from the main body, to bring them up to a particular point; if a vessel sail under the protection of a force thus appointed or detached, the warranty is complied with.

Although the terms of this warranty do not express it, yet it is essentially necessary, that the ship should not only depart, but also continue with the convoy until the end of the voyage, unless she be prevented by absolute necessity.

Case on a policy of insurance on the ship Speedwell', from London to Lisbon, warranted to depart from England with convoy. The ship sailed from London in December, and arrived at Spithead, (the place where the Lisbon convoy was to be met with) whence she sailed on the 25th December, with the convoy. On 26th December a storm arose, which separated her from her convoy, and rendered her so leaky, that she was obliged to sail for Plymouth, where she arrived on the 28th December. Having been refitted and made a tight ship, as was supposed, she sailed again on 13th February following, but without conroy. A few days after, she encountered another violent storm, and on 19th February, she was totally lost near Ireland. Lee, C. J. held, that the sense of the warranty was not to be taken literally; that the meaning was, not only to depart with convoy, but to keep with convoy during the whole voyage, and that this had always been so holden: that absolute necessity alone, such as rendered it impossible to keep with convoy, could excuse; as being driven by a tempest to some foreign port or place where convoy could not be had; but that was not the present case, the ship having been driven into an English

h Abbott, 217.

i Smith v. Readshaw, Park, ch. 18.
p. 349. De Garay v. Clagget, ib.
k Manning v. Gist, Marsh. 269. Aud-
ley, v. Duff, 2 Bos. & Pul. 111.

Morrice v. Dillon, London Sittings after M. T. 22 G. 2. coram Lee, C. J. MSS.

(46) It has always been understood, that provisions for a departure with convoy have relation to the custom of trade, and the orders of government, and ought therefore to receive a liberal con struction." Per Heath, J. in Audley v. Duff, 2 Bos. & Pul, 115

port. He, therefore, was of opinion, that this was not a Joss within the policy; and accordingly a verdict was found for the defendant.

But if a ship sails with convoy, and is separated by stress of weather, and does all in her power to rejoin the convoy, this will be considered as a sufficient compliance with the warranty, so as to render the insurers liable.

The security of trade, in time of war, has been considered as depending so essentially on ships sailing with convoy, that by a late statute" (47), (which continued in force during hostilities with France) it was enacted, 1. That no ship, belonging to any of his Majesty's subjects (except as therein provided (48),) should sail from any port or place without convoy. 2. That the master should use his utmost endeavour to continue with the convoy during the whole or such part of the voyage as the convoy was appointed to protect him, and not separate without leave of the commanding officer; and a penalty of 1000l., or in case the cargo be naval or military stores, 1500l., was imposed on him, if he sailed without convoy, or separated therefrom without leave, sub

Jeffery v. Legendra, 3 Lev. 320. n Stat. 43 G. 3. c. 57. See Cohen v. Carth. 216. Salk. 443. 1 Show. 320. Hinckley, 1 Taunt. R. 249. 4 Mod. 58.

(47) A similar statute was made during the preceding war. See stat. 38 G. 3. c. 76.

(43) The cases excepted from the operation of this act will be found in the 6th and 8th sections, and are as follow: 1. Ships not required to be registered. N. Foreign-built ships in British ownership are not required to be registered; consequently, they fall within this exception; and, where such ships are insured, it has been bolden not to be necessary to communicate to the underwriters, at the time of making the policy, that the ship is foreign-built. Long v. Duff, 2 Bos. & Pul. 209. 2. Ships licensed by the lord high admiral to depart without convoy. N. A policy on goods will not be affected by the terms of the license not having been complied with on the part of the ship owner. Edwards v. Footner, 1 Camp. N. P. C. 532. 3. Ships proceeding with due diligence, from their port of clearance outwards, to join convoy appointed to sail from some other port. 4. Ships bound to or from any place in Ireland. 5. Ships bound from one place in Great Britain to another. 6. Ships belonging to the East India or Hudson's Bay Company. 7. Ships sailing from a foreign port or place, in case there be not any convoy appointed, nor persons at such foreign port duly authorised to appoint convoys, or to grant licenses for sailing without convoy.

ject, however, to a reduction, by the court in which the ac tion for the penalty was brought, to a sum not less than 50%. 3. In case of a departure without convoy, or wilful separation, insurances upon ship, goods, freight, or other interest, (the property of the master or commander, or persons interested in ship or cargo, or being privy to such sailing without convoy or wilful separation,) were declared void: no premium to be recovered, and persons settling losses upon such insurances to forfeit 2001.; and, further, the master was to give a bond before he could be allowed to clear outwards, in the penalty of the value of the ship, to be forfeited upon sailing without convoy or wilful separation.

4. Neutral Property.-If the insurance be effected in time of war, and the party insuring be the subject of a neutral state, it is usual for him, in order to induce the underwriter to accept a smaller premium, to warrant that the subject matter of the insurance is neutral property, which is usually done by inserting in the policy the words "warranted neutral," or "warranted neutral property"; by which is to be understood, that the thing insured is neutral property at the time when the risk commences, not that it shall continue so during the whole voyage, for the risk of future war is undertaken by the insurer in every policy. But though it is not necessary, that a ship, warranted neutral, should continue neutral during the whole voyage; because if she be neutral at the time of sailing, the breaking out of war on the next day will not discharge the underwriter, yet the ship must not forfeit its neutrality by the misconduct of the parties on board; hence where, on an insurance of a ship warranted neutral, it appeared that the master and crew had broken their neutrality, in the course of the voyage insured, by forcibly rescuing the ship, which had been seized and carried into port by a belligerent power, for the purpose of search, it was holden, that the assured could not recover. That a warranty of neutrality may be satisfied, it is necessary,

1. That the vessel insured should belong to the subject of a neutral state.

2. That the vessel should be navigated, not only according to the law of nations, but also in conformity to the par

• Eden v. Parkison, Doug. 732. Ty son v. Gurney, 3 T. R. 477. per Bul

ler, J. in Saloucci v. Johnson, Park, 364.

p Garrels v. Kensington, 8 T. R. 230.

ticular treaties subsisting between the country to which she belongs and the belligerent states (49).

If, therefore, a state in amity with a belligerent power has, by treaty, agreed that the ships of their subjects shall only have that character when furnished with certain documents, whoever warrants a ship to be the property of such subject, should provide himself, at the time when the ship sails, with those evidences, which have, by the country to which she belongs, been agreed to be the necessary proof of that character (50).

In an action on a policy upon a ship warranted Dutch property, it appeared that the ship in question was originally a French privateer bearing a French name; that having been captured by the English, she was carried into Liverpool, and there named The Three Graces. A merchant there purchased her for a house at Amsterdam. Having been insured by a Dutch name, and warranted as in the policy, she went to sea, was captured by the French, and finally condemned by the parliament of Paris, under her English name, as lawful prize. The court were of opinion, that the sentence of the parliament of Paris was conclusive against the warranty.

So where it appeared, that a ship, warranted American", had not on board a passport, which was required by the treaty between France and America; it was holden, that the assured could not recover, inasmuch as the waranty had not been complied with; for that required that the ship

Barzillai v. Lewis, Park, 359. and r Rich v. Parker, 7 T. R 705. See MS. note of Buller J. cited by Law- further on this subject, Baring. v. rence J. in Pollard v. Bell, ST. R. 441. Christie, 5 East, 398.

(49) "Courts of admiralty are to proceed on the known jus gentium, or on the treaties between particular states; such treaties do not alter the jus gentium with respect to the rest of the world, but as between those particular states they are considered as engrafted on the jus gentium." Per Ld. Kenyon, C. J. in Bird v. Appleton, 8 T. R. 567.

(50) N. There is not an implied warranty on the part of the owner of goods insured, that the ship shall be in all respects properly documented, Where through the negligence of the captain the goods had not been regularly entered in the ship's manifest, for exportation, as required by stat. 13 & 14 Car. 2. and other statutes; the loss not having been occasioned by this omission, it was holden that the underwriters were liable. Carruthers v. Gray, 3 Camp. N. P. C. 142. 15 East, 35. S. C.

should be entitled to all the privileges of the American flag, and in order to be entitled to these privileges, she should have had a passport (51).

But it is not necessary, in order to satisfy a warranty of neutrality, that the vessel should be navigated in conformity to an ex parte ordinance made by one of the belligerent states, and to which the neutral state is not a party.

A neutral ship may carry enemy's property from its own to the enemy's country, without being guilty of a breach of neutrality; provided that neither the voyage or commerce be of a hostile description, nor otherwise expressly or impliedly forbidden by the law of this country; although such ship, in consequence of carrying enemy's property, be liable to detention or being carried into British ports, for the purpose of search.

The evidence usually adduced to falsify this warranty", or to prove a breach of forfeiture of neutrality, which amounts to a breach or forfeiture of the warranty, is the judgment of sentence of a court of admiralty, or other court having jurisdiction in questions of prize, by which the ship or goods insured, and warranted neutral property, have been condemned as prize.

Since the judgment of the House of Lords in Lothian v. Henderson, it may be assumed as the settled doctrine of a court of English law, that all sentences of foreign courts, of competent jurisdiction to decide questions of prize, are to be received here as conclusive evidence in actions upon policies of insurance, upon every subject immediately and properly within the jurisdiction of such foreign courts, and upon which they have professed to decide judicially.

Consequently, where such sentences are given in evidence, and it appears that they proceed on a ground which falsifies the warranty of neutrality, the assured will thereby

s Mayne v. Walter, Park, 363. Pollard v. Bell, s T. R. 434. Bird v. Appleton, 8 T. R. 562. Price v. Bell, 1 East, 663.

t Barker v. Blakes, 9 East, 283. u Marsh. 288.

x 3 Bos. & Pul. 499. per Ellenborough C. J. delivering the opinion of the court in Bolton v. Gladstone, 5 East, 155. and per Sir J. Mansfield, C. J. in Siffken v. Lee, N. R. 499.

(51) In the case of an insurance upon goods, in a certain ship, which ship is not represented as a neutral, at the time when the insurance is effected, although she be in fact a neutral, it is not necessary that she should be documented as such. Dawson v. Atty, 7 East, 367. See Bell v. Carstairs, 14 East, 393.