have been thrown over its solidity by the Supreme Court of the United States.a There has been much discussion respecting the doctrine of seaworthiness, in its application to the successive stages of the voyage subsequent to its commencement. The owner is bound to keep the vessel in a competent state of repair and equipment during the voyage, as far as it may be in his power. If this be not the case, and a loss afterwards happens, which could not by any means be either increased or affected by a prior breach of the implied warranty of seaworthiness when the policy attached, as, for instance, if the master should omit to take a pilot at an intermediate port, when he ought and might have done it, and the vessel be two years afterwards lost by capture, or if he sailed without sufficient anchors, and the vessels be afterwards struck with lightning, would the insurer be discharged? (1) The better opinion would seem to be that he would not be discharged.b A clause is frequently inserted in policies, that if a vessel upon a regular survey be declared unseaworthy, by reason of her being unsound or rotten, the insurers shall be discharged. This clause is intended to save the underwriters from the vexatious and difficult investigation of the latent defects of a ship to which the disaster was to be attributed. It is sufficient if the survey be made within a reasonable time after the termination of the voyage; and if the survey states that the vessel was condemned solely on account of rottenness existing at the time of the survey, it is a conclusive bar to the assured.c • M'Lanahan v. The Universal Ins. Company, 1 Peters' Rep. 170. b Shaw, Ch. J., Paddock v. Franklin Ins. Company, 11 Pick. 227. Weir v. Aberdeen, 2 Barnw. & Ald. 320. M'Millan v. Union Ins. Company of Charleston, S. C. 1838. American Ins. Company v. Ogden, 15 Wendell, 532. Copeland v. N. E. Marine Ins. Co. 2 Metcalf's R. 432. • Steinmetz v. United States Ins. Company, 2 Serg. & Rawle, 296. Brandegee v. National Ins. Company, 20 Johns. Rep. 328. Griswold v. National Ins. Company, 3 Cowen's Rep. 96. Rogers v. Niagara Ins. Company, 2 Hall's N. Y. Rep. 86. (1) The duty of the assured to keep the vessel in a fit state of repairs during the voyage, was much discussed in Copeland v. N. E. Ins. Co. 2 Met. R. 482. The use of the word seaworthiness in expressing this duty, was considered as having led to ambiguity in the language of the adjudged cases. But it was held, that the assured must, as promptly as it is in his power, from time to time during the voyage, make such repairs as the service in which the vessel was en The most usual express warranties are, that the ship was safe at such a time, or would sail by such a day, or would sail with convoy, or a warranty against illicit and contraband trade, or that the property insured is neutral. During the long maritime war that grew out of the French revolution, and while we continued in our neutral position, the warranty of neutrality attracted great attention, and became a very fruitful topic of discussion in the courts of justice. It was understood and settled, that it was not sufficient, under this warranty, that the ship and cargo were in fact neutral. They must be neutral to the purpose of being protected, and, therefore, the ship must have the requisite insignia of neutrality by being duly documented as a neutral vessel, and by being unaccompanied with documents that go to falsify the warranty. She must also have been conducted, throughout the voyage, according to the duties which particular treaties and the general rules of neutrality enjoin, so as to be entitled to protection, by the law of nations, in the courts of the belligerent powers. To construe the engagement to be less. *than that, would be to render it, in a great degree, *290 idle and nugatory. On such a warranty the insurer lays out of view the risk of loss, by reason of the want of due proof of neutrality, and of a strictly neutral conduct. The insured having in his own hands the means to maintain his averment, he is bound to do it whenever and wherever the neutrality of the property, or its privileges as such, are called in question. The warranty imposes upon the insured the exact observance of all those duties which belong to a neutral vessel; and by the violation, or by the omission, of any clear and certain neutral duty, the vessel forfeits her neutrality, and Blagge v. New-York Ins. Company, 1 Caines' Rep. 549. Baring v. Royal Exchange Ins. Company, 5 East's Rep. 99. Carrere v. Union Ins. Company, Condy's Marshall, 406. a. note. Galbraith v. Gracie, ibid. Phoenix Ins. Co. v. Pratt, 2 Binn. Rep. 308. Wilcocks v. Union Ins. Company, ibid. 574. Coolidge v. N. Y. Firemen's Ins. Company, 14 Johns. Rep. 308. The register is the only requisite document in time of peace in evidence of the national character of the vessel. Catlett v. Pacific Ins. Company, 1 Payne, 594. gaged should require; and that any loss which might occur in consequence of any neglect to make such repairs, could not be recovered of the underwriters. Hazard v. N. E. Ins. Co. 1 Sum. R. 218. 230. S. C. 8 Pet. R. 557. Starbuck v. N. E. Marine Ins. Co. 19 Pick. 198. the warranty is broken. The neutral is bound to submit to visitation and search, and resistance thereto would be a breach of the warranty.a Many interesting questions arise in the course of a maritime war, upon the warranty of neutrality, but which attract no attention while they remain dormant in a season of general peace. One of those questions held a prominent place some years ago in the jurisprudence of this country, and led to very vexed disussions and contradictory results. The controversy to which I allude was concerning the legal effect, in a suit upon the policy, of a sentence of condemnation in the admiralty courts of the belligerent powers, of property warranted neutral but captured, libelled and condemned as enemy's property. The general result of those discussions has been already stated, and they will probably not be revived until some maritime war shall hereafter arise, to stimulate cupidity, and disturb the commerce of the ocean. *291 *(6.) Of the perils within the policy. The general rule is, that the insurer charges himself with all the maritime perils that the thing insured can meet with on the voyage: præstare tenetur quodcunque damnum obveniens in mari. It was an ancient opinion stated by Santerna, that the insurer was not responsible for very unusual and extraordinary perils not specially stated. But such a principle is now utterly exploded, and the policy sweeps within its inclosure every peril incident to the voyage, however strange or unexpected, unless there be a special exception. The perils enumerated in the common policy are sufficiently comprehensive to embrace every species of risk to which ships and goods are exposed from the perils of the sea, and all other causes incident to maritime adventure. The enumerated list may be enlarged or abridged at the pleasure of the parties. In England and in this country, a specification of the risks is an essential part of the contract. In most of the countries of Europe, where there is no special a See vol. i. 153. b See vol. ii. 120, 121. e Santerna, de Ass. part 3. n. 72. Ord. de la Mar. tit. Ass. art. 20. Code, art. 350. Boulay Paty, tome iv. 9. agreement of the parties, the perils that the policy is to cover are defined by law.a A person may protect himself by insurance against all losses, except such as may be repugnant to public policy or positive prohibition, or occasioned by his own misconduct or fraud. Against the latter it is not to be presumed any insurance could be effected, nor would the courts tolerate such a vicious principle; for this would, as Pothier says, be a contract which would invite ad delinquendum.b 1. Of the acts of the government of parties. An insurance against loss by reason of the acts of one's own government as an arrest or embargo, is valid. There is no distinction on this point between a foreign and domestic embargo; and if the embargo intervenes after the commencement of the risk, it suspends, but does not dissolve, the contract of insurance, and the insured may aban- *292 don and claim a total loss. The same principle is incorporated into the new French commercial code, and it pervades universally the law of insurance.d A distinction has, however, been taken between that case and a claim arising between subjects of different states, and it has been held, that a foreigner could not claim against a British underwriter, founded on the act of his own state, any more than if the claim was created by his own act, and on the principle that he was to be deemed a party to the public authoritative acts of his own government. But Lord Ellenborough afterwards threw a doubt over the doctrine, and explained away the force of it, by raising refined distinctions. He said, the exclusion of risk occasioned by the act of the assured's own government, was only an implied exclusion from the reason and fit a Duer on Insurance, vol. i. 62-3. b Goix v. Knox, 1 Johns. Cas. 337. Simeon v. Bazett, 2 Maule & Selw. 94. Pothier, Traité de Ass. No. 65. C Page v. Thompson, cited in Park on Insurance, 109. n. 6th edit. Odlin v. Pennsylvania Ins. Company, 2 Wash. Cir. Rep. 312. Delano v. Bedford Ins. Company, 10 Mass. Rep. 347. M'Bride v. Marine Ins. Company, 5 Johns. Rep. 299. d Code de Commerce, art. 369. 1 Emerigon, 541. Pothier, h. t. Nc 59. • Conway v. Gray, 10 East's Rep. 536. Mennett v. Bonham, 15 East's Rep. 477. Flindt v. Scott, ibid. 525. ness of the thing, and might be rebutted by circumstances.a The distinctions were afterwards pointedly disclaimed, and the whole doctrine exploded, on a writ of error, in the exchequer chamber;b and it was there established, that it was no objection to the right of recovery by the insured, that the loss happened by the act of the government of his country, though he and the insurer were subjects of different states. The latter rule has, likewise, after a clear and accurate review of the cases, been adopted as just and solid by the Supreme Court of New-York; and it was declared, that a subject was not to be deemed a party to the legislative, and much less to the judicial acts of his own country, so as thereby to *293 deprive him of remedy on *a policy by a foreign insurance office, by reason of any acts or judgments of his own country. The contrary doctrine was founded on a fanciful and unreasonable theory.c (2.) of interdiction of commerce. An interdiction of commerce with the port of destination, or a denial of entry by the power at the port, or by a blockade, has been held not to be a loss within the policy, by decisions in England and in this country. The loss must be occasioned by a peril, acting upon the subject insured immediately, and not circuitously, and a just fear of capture is not sufficient. But there are other cases which have declared that an interdiction of commerce with the port of destination by means of a blockade, or the possession of the port by an enemy, was a peril within the policy. It is considered a loss by restraint of princes which could not be resisted, and operates as effectually as if the vessel was actually seized. It would be unreasonable to require the insured to rush into Simeon v. Bazett, 2 Maule & Selw. 94. b Bazet v. Meyer, 5 Taunt. Rep. 824. • Francis v. Ocean Ins. Company, 6 Cowen's Rep. 404. S. C. 2 Wendell's Rep. 64. d Hadkinson v. Robinson, 3 Bos. & Pull. 388. P. Rep. 50. Parkin v. Tunno, 11 East's Rep. 22. Lubback v. Rowcroft, 5 Esp. N. pany, 6 Mass. Rep. 102. King v. Delaware Ins. Company, 2 Wash. Cir. Rep. 300. Smith v. Universal Ins. Company, 6 Wheaton's Rep. 176. Story, J., in Andrews v. Essex Ins. Company, 3 Mason, 6. |