good faith, the validity of the policy will not be affected by the fraudulent misconduct of the master, in withholding from his owner information of the loss, until after the policy was underwritten.

*The French ordinance of the marine had no posi- *287 tive provision on this subject, and yet the same principles which prevailed in the English law were recognised as sound principles applicable to the government of the contract.a In the new code, it is provided, that any concealment or misrepresentation on the part of the insured, which would diminish the opinion of the risk, or change the subject matter of it, annuls the insurance. It is held to be void even when the concealment or misrepresentation would have had no influence on the loss. Nor is it deemed necessary, under the French law, to prove fraud in fact; and the concealment or misrepresentation is equally fatal, whether it proceeds from design, forgetfulness or negligence. The severe dispositions of the code are much commended by the French lawyers, as an improvement upon their ancient jurisprudence, and a great protection to the insurer against impositions of which he was often the victim.d

from the owner, in the letter to him, and the owner, upon the receipt of the letter, and in ignorance of the fact, effects an insurance, the policy is void so far as respects the previous loss; for that the captain was bound, as agent of the owner, to communicate to him the loss, and what was known to the agent was impliedly known to the principal.

• Emerigon, tome i. 69. The ordinances of Hamburgh, and of the marine, and the Code of Commerce, required generally that every condition or covenant stipulated between the parties, should be inserted in the policy. This would seem to include all positive representations, and yet they require only the substantial performance of them, unless a literal fulfilment be made a condition. Ord. de la Marine, 2 Valin, 31. Code de Commerce, art. 332. Benecke, cited by Mr. Duer on Representations, p. 133. The English judges have regretted that all material representations were not inserted in the policies, to avoid dispute and litigation. Lord Tenterden and Sir Vicary Gibbs, 9 B. & Cress. 693. 4 Taunton, 639. b Code de Commerce, art. 348.

• Pardessus, tome iii. 330. Boulay Paty, tome iii. 510. The latter writer cites several decisions from the Journal de Jurisprudence, Commerciale et Maritime de Marseilles, made within the ten preceding years, by which contracts of insurance were declared void on this very ground of misrepresentation and concealment ; and they do great credit to the exemplary justice of the French tribunals. Ibid. 514 -527.

Under this head of representations, the lecture of Mr. Duer, recently published,

2. Of warranty.

There is, in every policy, an implied warranty that the ship is seaworthy when the policy attaches. (1) This means, as we have already seen, that the vessel is competent to resist the ordinary attacks of wind and weather, and is competently equipped and manned for the voyage, with a sufficient crew, and with sufficient means to sustain them, and with a captain of general good character and nautical skill.a (2) It

and to which I have frequently referred, contains an excellent analysis of the cases, and a logical deduction of the principles they sustain, and it increases our earnest desire that he may be encouraged to go on, and examine and illustrate the whole body of insurance law, in the same critical and masterly manner. • Law v. Hollingworth, 7 Term Rep. 160. Wilkie v. Geddes, 3 Dow's Rep. 57. Silva v. Low, 1 Johns. Cas. 184. Brown v. Girard, 4 Yeates' Rep. 115. Walden v. Firemen's Ins. Company, 12 Johnson, 128. In the nisi prius case of Clifford v. Hunter, 3 Carr. & Payne, 16, Lord Tenterden ruled, that a ship was not seaworthy for a voyage from India to England, with no other person on board except the master, capable by his skill in navigation of taking the command of the ship, in the case of the death or sickness of the master, and that the mate must have that nautical skill. This is a new doctrine, and it may be questioned as a general rule, applicable to all voyages. Lord Tenterden admitted it to be a question, not of law, but of fact, for a jury. The warranty would seem to imply no more than that the assured must have a sound and well equipped vessel in reference to the voyage, and have on board a competent person as master, and a competent person as mate, and a competent crew as seamen. In the American coasting and West India trade, Lord Tenterden's rule would be oppressive, and is contradicted by usage, and is not the law in respect to any such trade. Treadwell v. Union Ins. Company, 6 Cowen, 270. In the case of Gillespie v. Forsyth, tried before Mr. Justice Bowen and a special jury, in the K. B., at Quebec, October, 1839, the doctrine of Lord Tenterden was discarded, in reference at least to voyages between the West Indies and Quebec, and it was shown to be contrary to usage. Law Reporter for January, 1840. But in Copeland, in N. E. Marine Ins. Company, 2 Metcalf's R. 432, it was held, after great discussion, that a vessel to be seaworthy,

(1) It is not sufficient to satisfy this warranty, that the ship has been pronounced seaworthy by skilful shipwrights, after a careful examination. Brig Casco, Davies' D. C. R. 192, per Ware, J.

It is now settled in England, that a warranty of seaworthiness attaches to time policies as well as to others; and that it relates to the time when the risk of the insurers attaches. Small v. Gibson, Law Journal Rep. 2 B. May, 1850, p. 147. The case was carried to the Exchequer Chamber. It was there held, that there is no implied warranty, in a time policy, that the ship is seaworthy at the commencement of the risk or term, wherever she might be, and in whatever circumstances she was placed; but it seems there may be an implied warranty that the ship is seaworthy for the voyage, if she is on a voyage; or for the port, if in a port; or if at sea, when that voyage commenced. 8 Eng. L. & E. R. 299.

(2) A regular survey which pronounces a vessel unseaworthy is not a bar, within the "rotten clause" of the policy, unless it appears that the rottenness was the sole cause of the unseaworthiness. Junes v. The Alliance Mut. Ins. Co. 1 Sandf. (Law) R. 810.

is also an implied condition, that the goods, tackle of the ship, &c., shall be properly stowed,a (1) and that there should be a pilot on board of competent skill.b (2) This warranty of seaworthiness relates to the commencement

*of the risk, and the warranty is not broken if she be- *288 comes unseaworthy afterwards. (3) But it is the duty

c

of the assured to keep the vessel seaworthy during the voyage, if it be in his power to do so; and if, from the neglect or want of good faith of the owner or his agents, the vessel becomes unseaworthy, by damage or loss in her hull or equipments during the voyage, the owner must repair the damage or supply the loss, at the port of refuge, refreshment or trade. The underwriter will be discharged from liability for any loss, the consequence of such want of faith or diligence. Unseaworthiness arising after the commencement of the voyage, and produced by a peril insured against, does not, of itself, discharge the insurer. It imposes upon the assured the duty of using reasonable diligence to re

must not only have a competent master, but a mate, competent to act as master in case of necessity.

■ Roccus, note 22. Brooks v. Oriental Ins. Company, 7 Pick. 259. b Vide supra, p. 175.

• Peters v. Phoenix Ins. Company, 3 Serg. & Rawle, 25. Holdsworth v. Weir, 1 Manning & Ryland, 673. American Ins. Company v. Ogden, 20 Wendell, 287. The want of seaworthiness in a vessel when the voyage commences, is a good defence, though she arrived in safety at the port of destination. Prescott v. U. Ins. Company, 1 Wharton, 399. Seaworthiness at the commencement of the voyage is a condition precedent; and if seaworthiness does not then exist, the policy is void, and the insurers are not responsible for subsequent loss, even if it arises from another cause; for the policy never attached. Starbuck v. N. E. Ins. Company, 19 Pick. R. 199. If a vessel be warranted neutral, it is sufficient that she be so when the risk commences. Eden v. Parkinson, Doug. 733. Tyson v. Gurney, 3 Term, 477. If the warranty or representation be falsified by irresistible force or unavoidable accident, after the risk has attached, the validity of the contract remains unimpaired.

(1) Stowing on deck all the water on board a vessel, in violation of the act of Congress, (St. 1790, c. 56, § 9,) does not render the vessel even prima facie unseaworthy. Deshon v. Merchants' Ins. Co. 11 Met. R. 199.

(2) It has been held, that a refusal to take a pilot, does not render void the policy, although the legislature had made such refusal penal, and a loss occurred on pilot ground. Hanigen v. Washington Ins. Co. 7 Barr's R. 306.

(3) Seaworthiness being a condition precedent to the attaching of the policy, some proof of its fulfilment must in all cases be first given by the assured. Moses v. Sun M. Ins. Co. 1 Duer's

R. 159.

pair it, and a negligence in that respect may discharge the insurer from any loss arising from the want of such due diligence. If a vessel be insured in the latter part of a long sea voyage, the standard of seaworthiness is more liberal and more relaxed, and it will be sufficient if the vessel be competent to be safely navigated home. There are numerous cases in England and in this country on the question of seaworthiness, and they have generally been questions depending upon matters of fact, and lead to inquiries too minute for general elementary instruction. A breach of the implied warranty of seaworthiness, in the course of the voyage, has no retrospective operation, and does not destroy a just claim to damages for losses occurring prior to the breach of this implied condition. The standard of seaworthiness has been gradually raised within the last thirty years, from a more perfect knowledge of ship-building, a more enlarged experience of maritime risks, and an increased skill in navigation.

In many ports certain equipments would now be deemed essential, which, at an earlier period, were not customary on the same voyages. Seaworthiness is to be measured by the standard in the ports of the country to which the vessel belongs, rather than that in the port or country where the insurance was made.e

Every warranty is part of the contract, and is either express or implied. If it be an express warranty, it must appear upon the face of the policy. Any statement or averment of a fact, or any undertaking or description on the part of the insured on the face of the policy, which relates, as a matter of fact, to the risk, amounts to a warranty. It differs

a Paddock v. Franklin Ins. Company, 11 Pick. 227. Hollingworth v. Broderick, 7 Adolph. & Ellis, 40. American Ins. Company v. Ogden, 20 Wendell, 287. 294. Copeland v. N. E. Marine Ins. Co. 2 Metcalf's Rep. 432.

b Hucks v. Thornton, 1 Holt's N. Y. Rep. 30. Paddock v. Franklin Ins. Company, 11 Pick. 227.

• The cases are well collected in Phillips on Insurance, vol. i. 308-329, 2d edition.

a The same principle applies as to misrepresentations exempt from fraud. Duer on Representations, 83. Annen v. Woodman, 8 Taunt. Rep. 299. Sewall, J., in Taylor v. Lowell, 3 Mass. Rep. 347. Paddock v. Franklin Ins. Company, 11 Pick.

• Tidmarsh v. Washington Fire and Marine Ins. Company, 4 Mason, 439.

from a representation in this respect, that it is in the nature of a condition precedent, and requires a strict and literal performance. Whether the thing warranted by material or not, and whether the loss happened be reason of a breach of the warranty, or did not, is immaterial. A breach of it avoids the contract ab initio. Every condition precedent requires a strict performance to entitle a party to his right of action. But seaworthiness *in port may be *289 one thing, and seaworthiness for a whole voyage quite another; and a ship may be seaworthy in harbour when under repair, though she would not be so in that condition at sea.b It relates to the purposes in contemplation, whether in port or for the voyage, and seaworthiness is of course subject to be modified by circumstances. A vessel may be seaworthy while lying in port for the purposes to which she is to be there applied, when she would not be for the voyage, and she may be seaworthy for one voyage and not for another. It is sufficient if she be seaworthy for the voyage when she sails.c The general rule is, that the vessel must be seaworthy at the commencement of the risk, whatever that risk may be, in order to make the policy attach and charge the insurer. It was held, in the case of Weir v. Aberdeen, that though a ship be unseaworthy at the commencement of the risk, yet if the defect be cured before a loss, a subsequent loss is recoverable under the policy. The argument of Lord Tenterden in favour of this doctrine is very weighty, but a doubt seems to

e

De Hahn v. Hartley, 1 Term Rep. 243. Kenyon v. Berthon, Douglass, 12 note 4. Goix v. Low, 1 Johnson's Cases, 341. Barker v. Phoenix Ins. Co. 8 Johnson's R. 307. Goicoechea v. Louisiana State Ins. Company, 6 Martin, N. S. 51. Wood v. Hartford F. I. Company, 13 Conn. Rep. 533. So, in the French law, a false declaration, as that a vessel was armed, or would sail with convoy, though made by mistake, and without fraud, avoids the policy. Pothier, Traité d'Assurance, n. 196.

b Annen v. Woodman, 3 Taunt. Rep. 299. Bond v. Nutt, Coup. Rep. 601. Pawson v. Watson, ibid. 785. De Hahn v. Hartley, 1 Term Rep. 343. Worsley v. Wood, 6 ibid. 710. Forbes v. Wilson, 1 Park on Insurance, 344. Fowler v. Ætna Fire Ins. Company, 6 Cowen's Rep. 673,

с

Taylor v. Lowell, 3 Mass. Rep. 331. Merchants' Ins. Company v. Clapp, 11 Pick. 56.

d Paddock v. Franklin Ins. Company, 11 Pick. 227.

• 2 Barnw. & Ald. 320.