Inception and end of risk.

383 any person carried in any ship; (2) damage or loss caused to any goods, merchandise, or other things whatsoever on board any ship; (3) loss of life or personal injury, by reason of the improper navigation of any ship, caused to any person carried in any other ship or boat; (4) loss or damage, by reason of the improper navigation of any ship, caused to any other ship or boat, or to any goods, merchandise, or other things whatsoever on board any other ship or boat, and occurring without the actual fault or privity of the owners, shall not be invalid by reason of the nature of the risk.

Insurance of freight.] The interest of a shipowner in the profit expected from carrying his own goods is properly described and insured as freight. Flint v. Flemyng, 1 B. & Ad. 45; Devaux v. J'Anson, 5 N. C. 519. As to the nature of this insurance, see Potter v. Rankin, L. R., 6 H. L. 83; in this case the insurance was of specific chartered freight, to be earned on a future voyage, against perils to be incurred in the current one. As to the term freight, including passage money, see Denoon v. Home and Colonial Insur. Co., L. R., 7 C. P. 341. In a valued policy the court will inquire of what freight insured consisted to ascertain whether the claim has been satisfied or not. Williams v. N. China Insur. Co., 1 C. P. D. 757, C. A.

Inception and end of the risk.] The risk begins at the port, when the insurance is on a voyage "at and from," &c.; Palmer v. Marshall, 8 Bing. 79, 317; as soon as the ship is geographically within the port; Haughton v. Empire Marine Insur. Co., L. R., 1 Ex. 206; or, at the beginning of the voyage, when the insurance is "from" the port; Small v. Gibson, 16 Q. B. 156, 157; 20 L. J., Q. B. 152, Ex. Ch. The words "port or ports of loading" in the province of B. A. include, not merely those places technically called ports, but all places to which ships are accustomed to resort for the purpose of taking in cargo. Harrower v. Hutchinson, L. R., 4 Q. B. 523. It makes no difference that by the regulations of the province a vessel which has loaded at such port cannot proceed direct homewards. ld. The judgment was reversed on other grounds, but these points were affirmed by majority of the Ex. Ch., L. R., 5 Q. B. 584, 589.

By a charter-party, a vessel, after discharging her outward cargo for owner's benefit, was to proceed to G. or I., as ordered at C. or S. by the charterer's agents, and there load a cargo, and therewith proceed homewards, and discharge at a port in the United Kingdom, and so end the voyage; it was held that the voyage commenced from the period of the discharge of the outward cargo. Bruce v. Nicolopulo, 11 Exch. 129; 24 L. J., Ex. 321. See Valente v. Gibbs, 6 C. B., N. S. 270; 28 L. J., C. P. 229. A charter-party, with the usual clause against sea perils during the voyage, stipulated that a certain steamer at N., being tight, &c., and fitted for the voyage, should proceed to the usual place of loading at N., (or as near thereto as could safely be got), and there load and proceed to A.: it was held, that the voyage commenced from her starting from her then berth for the loading place, and that the exception applied to that portion of the voyage. Barker v. M'Andrew, 18 C. B., N. S. 759; 34 L. J., C. P, 191.

In the case of a time policy (i.e., an insurance within certain dates without regard to a particular voyage), the risk begins at the first date.

Where the vessel is lost in the course of a voyage for which she is insured, some proof of the inception of the voyage, or risk, must be given. Koster v. Innes, Ry. & M. 333. This may be proved by some of the crew; or proof of a particular destination by charter-party will afford a presumption that she sailed on the chartered voyage; so, proof of her clearing out for a particular port would be evidence that she set sail for that port; per Ld. Ellenborough, C. J. Cohen v. Hinckley, 2 Camp. 52. So, proof, of a convoy-bond

for a particular port, signed by the captain, coupled with the testimony of the custom-house officer that a certificate and other papers for such a voyage would, in the regular course of office, be delivered to the captain before he sailed, together with proof of his sailing, is prima facie evidence of the ship having sailed on such voyage. Ibid. A licence for the port mentioned in the policy is prima facie evidence to the same effect. Marshall v. Parker, 2 Camp. 69. If the statement of claim aver that the ship sailed after the making of the policy, but in fact it was before, the variance is not material. Peppin v. Solomons, 5 T. R. 496.

The risk in the case of a voyage policy on the ship to a port without any provision as to her safety there, terminates when she is anchored at the port in the usual place for discharge of her cargo. Stone v. Marine Insur. Co, &c., 1 Ex. D. 81. But, the policy usually extends in terms to the end of a period of 24 hours after mooring in safety in port, and the underwriters are not liable for a seizure after the 24 hours, though for smuggling committed on the voyage; Lockyer v. Offley, 1 T. R. 252; but, where during the 24 hours the ship is compelled to go back for performance of quarantine, the risk continues; Waples v. Eames, 2 Str. 1243. A ship was insured from L. to certain ports and during 30 days' stay in her last port of discharge, and in another part of the policy the risk was stated to continue until she had moored at anchor 24 hours in good safety; held that the 30 days did not begin to run till the expiration of the 24 hours. Mercantile Marine Insur. Co. v. Titherington, 5 B. & S. 765; 34 L. J., Q. B. 11; Gambles v. Ocean Marine Ins. Co., 1 Ex. D. 141, C. A. Where the risk was "at and from A. to B., and for 30 days after arrival," "upon the ship, &c., until she hath moored at anchor 24 hours in good safety," it was held, that after the expiration of 30 days from the arrival and mooring of the vessel, and her having remained as a vessel, though not sound, for 24 hours, the underwriters were not responsible for a subsequent total loss. Lidgett v. Secretan, L. R., 5 C. P. 190.

As to re-insurance by one insurance company under a running policy with another company, see Gledstanes v. R. Exch. Insur. Co., 5 B. & S. 797; 34 L. J., Q. B. 30: such policy is good, although the subject-matter of the insurance was declared after notice to all parties of the loss of the vessel, although it was not then known that the insurers had any insurable interest therein. S. C.

In the case of goods, the risk depends on the agreement of the parties, but, it usually begins with the loading on board, and ends with the safe discharge, including their passage to the shore by usual means. Tierney v. Etherington, cited per cur., 1 Burr. 348; 3 Kent, Com. 309; see Australian Agricultural Co. v. Saunders, L. R., 10 C. P. 668. Where the insurance was on goods "at and from a given port, beginning the adventure from the loading at as above," a constructive loading at the port is sufficient; as, if the goods have been partially reloaded, or there has been a material alteration in the ownership of the goods or the voyage, on the arrival of the ship at the port with the goods already aboard. Carr v. Montefiore, 5 B. & S. 408, 425; 33 L. J., Q. B. 57, 256. See also Joyce v. Realm Marine Insur. Co., L. R., 7 Q. B. 580. It seems that evidence of brokers and merchants is admissible to prove what is the custom as to when the outward bound risk determined in order to show when the homeward bound risk commenced. Camden v. Cowley, 1 W. Bl. 417. The risk may include land transit. Rodocanachi v. Elliott, I. R., 8 C. P. 649; L. R., 9 C. P. 518, Ex. Ch.

The risk on insurance of freight, in the absence of express provisions, begins when the goods, or part, are on board, or the ship is at the port of loading in a condition to take them on board. Tonge v. Watts, 2 Str. 1251; Devaux v. J'Anson, 5 N. C. 519; Williamson v. Innes, 1 M. & Rob. 88; 8

Shipment of Goods.-Warranty of Sailing.

385

Bing. 81, n.; Barber v. Fleming, L. R., 5 Q. B. 59; Foley v. United Fire, &c. Insur. Co., L. R., 5 C. P. 155, Ex. Ch. ; and Jones v. Neptune Marine Insur. Co., L. R., 7 Q. B. 702. 3 Kent, Com. 270, 311.

Shipment of the goods.] The shipment of goods on board is usually proved by the captain; and, if he be dead, the production of the bill of lading, and proof of his handwriting will be evidence of the shipping as well as of the interest, but not if he add "contents unknown;" Haddow v. Parry, 3 Taunt. 303; nor, if he be alive; Dickson v. Lodge, 1 Stark. 226. The сору of an official report, made in pursuance of the Customs' Acts, 12 Car. 2, by the searcher of the customs, containing an account of the cargo exported, has been admitted to prove the shipping, without calling the searcher. Johnson v. Ward, 6 Esp. 48.

In an action upon a policy on freight, the assured must show that some freight would have been earned, either by proving that some goods were put on board, or that there was some contract for doing so. Flemyng, 1 B. & Ad. 45: Devaux v. J’Anson, ante, p. 384.

Flint v.

Compliance with warranties.] Warranties are expressed or implied. They are in the nature of conditions precedent. Where the policy contains an express warranty, and the defence raises the point of non-compliance therewith, a literal and strict compliance with it must be proved; it is not sufficient to show something tantamount to a performance, unless it be a waiver or dispensation of performance, which must be pleaded as such, and not as a compliance. Pawson v. Watson, Cowp. 785; 2 Wms. Saund. 201, 201 a, (1); Croockewit v. Fletcher, 1 H. & N. 893; 26 L. J., Ex. 153. But, an amendment to admit evidence of such a defence would be allowed in a proper case, vide ante, p. 269, et seq.

A memorandum written on a separate piece of paper cannot be considered a warranty. Pawson v. Barnevelt, 1 Doug. 12, n. But, if a separate paper be referred to in the policy, it may thereby become part of the policy, and constitute a warranty. Worsley v. Wood, 6 T. R. 710 (fire policy); Colledge v. Harty, 6 Exch. 205; 20 L. J., Ex. 146; Heath v. Durant, 12 M. & W. 438. It is immaterial whether the warranty is in the margin or in the body of the policy. Bean v. Stupart, 1 Doug. 11; De Hahn v. Hartley, 1 T. R. 343. A warranty may be waived by a memorandum on the policy without a stamp, under the 30 & 31 Vict. c. 23, s. 10 (ante, p. 249), Hubbard v. Jackson, 4 Taunt. 169; Weir v. Aberdeen, 2 B. & A. 325; decided under 35 Geo. 3, c. 63, s. 13.

Warranty of sailing.] To satisfy a warranty "to depart" on or before a particular day, the vessel must be out of port on or before that day; Moir v. R. Exch. Assur. Co., 3 M. & S. 461; 6 Taunt. 241; but, a warranty "to sail" is satisfied by the ship breaking ground and getting under weigh; S. C.; Lang v. Anderdon, 3 B. & C. 495. Where the insurance was from an inland port, as Lyons, and the ship left that port before the day, without her masts and heavy tackle, which she afterwards took in at Marseilles (this being the usual course) without unreasonable delay, but did not sail thence till after the day; it was held that, looking at the nature of the voyage, and the mercantile usage in similar adventures, she had complied with the warranty to sail by the given day, and with the implied warranty of seaworthiness. Bouillon v. Lupton, 15 C. B., N. S. 113; 33 L. J., Č. P. 37 ; and see Dixon v. Sadler, post, p. 387. But, unless the ship is unmoored, the warranty to sail is not complied with. Nelson v. Salvador, M. & M. 309. Sailing before the vessel has got her clearances, and is equipped for the voyage, is not a sailing within the warranty. Ridsdale v. Newnham, 3 M.

VOL. I.

C C

& S. 456. So, if the ship leave the harbour on the day without a sufficient crew on board, though the remainder of the crew are engaged and ready to sail. Graham v. Barras, 5 B. & Ad. 1011. Where a vessel sailed from St. Anne's, Jamaica, within the time of warranty with her cargo and clearances on board, and called at another usual port in Jamaica for convoy, where she was detained by an embargo till after the time of warranty, it was held that this was a sufficient sailing from Jamaica. Bond v. Nutt, Cowp. 601; Thellusson v. Fergusson, 1 Doug. 360. A warranty to sail from Q. on or before November 1st, contained in a policy on a vessel "at and from" New York to Q. and thence to England, is confined to the part of the voyage from Q. to England, and the insurer is therefore liable for a loss occurring after November 1st on the voyage from New York to Q. Baines v. Holland, 10 Exch. 802; 24 L. J., Ex. 204. In a time-policy a warranty not to sail for a particular country after a certain day, is complied with by getting out of the dock, and endeavouring to leave the harbour in the prosecution of the voyage; it might be otherwise, if the warranty were to sail from some particular terminus. Cochrane v. Fisher, 1 C. M. & R. 809, Ex. Ch. A ship having been proved to have sailed under convoy, to prove the time of sailing the log-book of the commander of the convoy is evidence. D'Israeli v. Jowett, 1 Esp. 427.

Warranty of flag.] On a policy on goods, in order to prove a warranty that the ship insured was Danish, proof of her carrying the flag of that nation at times when she was free from the danger of capture, and that the captain addressed himself to the consul of that nation in a foreign port, was held prima facie evidence. Arcangelo v. Thompson, 2 Camp. 620. Under a warranty of neutrality it is sufficient to show that the ship was neutral when the risk commenced, though from subsequent hostilities it ceased to be so during the voyage. Eden v. Parkison, 2 Doug. 732. In a policy of insurance on goods to be carried in a certain ship, there is no implied warranty that the ship shall not change her nationality. Dent v. Smith, L. R., 4 Q. B. 414.

Implied warranties.] There are also certain implied warranties, the breach of which will prevent the insured from recovering. Such implied warranties are ;-that there shall be no deviation from the voyage insured ;—that it shall be commenced without unreasonable delay ;-that all material circumstances should be disclosed to the underwriters ;-and that the ship shall be seaworthy and a breach of these conditions avoids the policy whether there be fraud or not. Small v. Gibson, 16 Q. B. 158; 20 L. J., Q. B. 158, Ex. Ch., per cur.

Warranty of seaworthiness.] By being seaworthy "is meant that the ship 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. If the assurance attaches before the voyage commences, it is enough that the state of the ship be commensurate to the then risk; and, if the voyage be such as to require a different complement of men, or state of equipment in different parts of it, as if it were a voyage down a canal or river and thence across to the open sea, it would be enough if the vessel were, at the commencement of each stage of the navigation, properly manned and equipped for it. But, the assured makes no warranty to the underwriters, that the vessel shall continue seaworthy, or that the master or crew shall do their duty during the voyage, and their negligence or misconduct is no defence to an action on the policy where the loss had been immediately occasioned by the perils insured against;" per Parke, B.,

Warranty of Seaworthiness.

387

in delivering the judgment of the court, in Dixon v. Sadler, 5 M. & W. 414; cited and approved by the court in Biccard v. Shepherd, 14 Moo. P. C. 494; Bouillon v. Lupton, 15 C. B., N, S. 113; 33 L. J., C. P. 37, cited ante, p. 385; Davidson v. Burnand, L. R., 4 C. P. 117; and Quebec Marine Insur. Co. v. Commercial Bank of Canada, L. R., 3 P. C. 234. An exception of loss from unseaworthiness does not restrict the implied warranty. S. C. Where the ship is not seaworthy when she sails on her voyage, this is not remedied by her becoming so afterwards and before loss. S. C., following Forshaw v. Chabert, 3 B. & B. 158; and overruling Weir v. Aberdeen, 2 B. & A. 320, 324, on this point.

There is a warranty of a similar nature, in an insurance upon goods, with respect to the ship on which they are loaded. Biccard v. Shepherd, supra. In a policy on deck cargo, it is insufficient that the ship is fit safely to encounter weather, only because the deck cargo can be readily jettisoned. Daniels v. Harris, L. R., 10 C. P. 1. But, there is no implied warranty as to the goods themselves, that they are seaworthy for the voyage. Koebel v. Saunders, 17 C. B., N. S. 71; 33 L. J., C. P. 310. In Biccard v. Shepherd, supra, there was an insurance on copper ore, "at and from the anchorages of H. and N. to S., to commence from the loading at and from the above ports;" the ship was seaworthy at H., but became unseaworthy at N. by reason of overloading, and was lost after sailing from N.; and it was held that the insured could recover for the ore shipped at H., but not for that shipped at N. See also Bouillon v. Lupton, supra. On an insurance of goods until safely landed, including all risk to and from the ship, there is no warranty that the lighters employed to land the cargo shall be seaworthy. Lane v. Nixon, L. R., 1 C. P. 412.

Prima facie a ship is presumed to be seaworthy; Parker v. Potts, 3 Dow, 23; and the onus of proving she is not seaworthy lies on the defendants; Davidson v. Burnand, supra; but, where the inability of the ship to perform the voyage becomes evident in a short time after sailing, the presumption is that it arises from causes existing before her setting sail on the voyage, and that the ship was not then seaworthy; and the onus probandi in such cases rests with the assured, to show that the inability arose from causes subsequent to the commencement of the voyage; per Ld. Eldon, in Watson v. Clark, 1 Dow, 344; explained by the C. A. in Pickup v. Thames & Mersey Marine Insur. Co., 3 Q. B. D. 594, C. A.; Douglas v. Scougall, 4 Dow, 269. A ship is not fit for a voyage unless she sails with a crew competent for the voyage, considering its length and the circumstances under which it is undertaken. Therefore, where, on a voyage from Mauritius to London, there was no one on board competent to supply the captain's place in case of illness, Ld. Tenterden, C. J., left it to the jury whether the vessel was seaworthy, and the jury found in the negative. Clifford v. Hunter, M. & M. 103. Kent (3 Čom. 287, n.) observes that this ruling will hardly apply to short coasting voyages, and cites an American case to that effect. But, where the assured has once provided a sufficient crew, the negligence of the crew at the time of the loss is no breach of the implied warranty. Busk v. R. Exch. Assur. Co., 2 B. & A. 73; Dixon v. Sadler, supra.

There is an implied warranty of seaworthiness in a voyage policy, though the insurance be on an abandoned ship and cargo in the interest of the salvor's lien. Knill v. Hooper, 2 H. & N. 277; 26 L. J. Ex. 377. But, "seaworthiness" is a relative term; and, it is for the jury to say whether the ship was reasonably able to perform the voyage; S. C.; as it depends on the nature of the ship as well as of the voyage insured for; and in an action on a policy (in the usual form) evidence of these facts is admissible to show the amount of seaworthiness implied. Therefore, on a policy "on the Ganges steamer from the Clyde to Calcutta," a vessel constructed for