What constitutes

seawor

thiness.

*1190 If the ship

be seaworthy at

the commence

is suffi

cient.

To satisfy a warranty of seaworthiness, it is necessary not only that the hull of the vessel be tight, staunch and strong, but that she be also furnished with ground-tackling sufficient to encounter the ordinary perils of the sea; and therefore, where it appeared that the best bower-anchor and the cable of the small bower-anchor were defective, the vessel was held not to be seaworthy. Where a vessel had been lengthened and insured for a foreign voyage, but the new parts were not fastened with hanging knees; held, that she was not seaworthy for such a voyage, at the commencement of the risk. A ship to be seaworthy must be rendered as secure as possible from capture, as well as as from the perils of the sea. A neutral vessel is not seaworthy, unless she is provided with documents to prove her neutrality.d

*It is a clear and established principle, that if a ship is seaworthy at the commencement of the risk, though she becomes otherwise in one hour afterwards, the warranty is complied with, and the underwriter is liable."(1) But where the inability of a ship to perform the voyage insured, appears in a short time from the period of her setting sail, the presumption is, that the risk, it the inability arose from causes existing previously to the commencement of the voyage, and that she was not then seaworthy.(2) Therefore, where a ship sailed on her voyage, and a few days afterwards without any adequate cause arising after the period of her sailing, became so leaky as to compel the master to return to Honduras; on returning thither, she struck on a reef of rocks, and was lost; held, that she was not seaworthy at the time of commencement of the risk. So, where a ship sailed, and soon afterwards encountered a storm, became leaky, put back, and was found on survey to be materially decayed, and a damage was discovered which could not fairly be considered as the effect of a storm; held, that she was not seaworthy when she sailed on the voyage insured; and that on a question as to seaworthines, honesty of intention is no answer, but the fact of seaworthiness must appear, or otherwise the underwriter is discharged; and though a vessel, after sailing encounters a storm, yet, unless the damage which renders her

a Wilkie v. Geddes, 3 Dow. 57.

• Wedderburn v. Bell, 1 Camp. 1.

• Watson v. Clark, 1 Dow. 336. 344. 348. 'Munro v. Vandam, Park, 333.

Watt v. Morris, 1 Dow. 32.

d Steel v. Lacy, 3 Taunt. 285.

(1) (American Ins. Co. v. Ogden, 15 Wend. 532.)

(2) (Where the question was as to the seaworthiness of a vessel, in an action by the insured against the insurer, and there being no contradictory testimony as to the facts, the judge charged the jury that "if the facts are as stated in the protest, that the vessel began to leak as soon as she began to sail or soon after, and continued to leak up to the time of the storm, or any fortuitous accident, and would in consequence thereof have required repairs, although there had been no storm, then the law says she was unseaworthy," it was held that the law was correctly laid down to the jury, and that the court was right in not leaving it to the jury to presume seaworthiness or otherwise. Prescott v. The Union Ins. Co., 1 Wharton, 399. See Paddock v. The Franklin Ins. Co., 11 Pick. 227.)

unfit for the voyage can be fairly considered as the effect of such storm, the implied warranty is not complied with.a

with a

An implied warranty of seaworthiness requires that the ship The ship should be provided with a sufficient crew, of competent skill, must be a captain, and a pilot, when necessary. The underwriters provided were held not to be liable, where the crew were insufficient, competent in not having a person on board able to take the captain's crew, and place on his being dangerously ill, and the ship was conse- a person *quently obliged to deviate from her course to find a person to qualified direct her.

to navi

gate her.

When a ship homeward bound to the port of London, re- 1191 ceived a pilot at Orfordness, as directed by 5 Geo. II, c. 20, and dropped him before she reached her moorings in the river Thames, after which she was sunk by an accident; it was held that the underwriters were discharged from liability; Lord Kenyon, C. J., observing, that " in this case the captain did not perform his duty, for he had no pilot on board at the time when the accident happened; and it is one of the things implied in contracts of this kind, that there shall be some person on board the ship apparently qualified to navigate her."

If the owner in the first instance provides the ship with a If a comcompetent crew, the implied warranty is complied with, though petent the ship be lost through the negligence of the crew. The crew be provided owner having provided a competent master and crew in the in the first first instance has discharged his duty, and is not responsible for instance, their negligence as between him and the underwriters. The it is suffiimplied warranty of seaworthiness, in a policy on a ship does cient. not extend to her being seaworthy at every port which she leaves in the course of her voyage. Where a vessel engaged in the southern whale and seal fishery, and with liberty to chase and capture prizes, is insured in August, 1807, with a retrospect to the first of August, 1806, although at the time of her insurance she was not competent to pursue all the purposes of her voyage, her crew being reduced by death and

a Douglas v. Scougall, 4 Dow. 269. Parkes v. Potts, 3 Dow. 23. Beach v. Cawley, Park, 343.

Tait v. Levi, 14 East, 481. Forshaw v. Chabert, 3 B. & B. 158. (7 Eng. C. L. 389.) 6 Moore, 369. "The vessel must not only be seaworthy, but the crew must be adequate to discharge the ordinary duties, and to meet the usual dangers to which she is exposed." Per Lord Ellenborough, C. J., in Hunter v. Potts, S. N. P. 1011.

Clifford v. Hunter, M. & M. 103. 3 C. & P. 16. (14 Eng. C. L. 189.) But it was considered to be a question of fact for the jury, and not a question of law to be determined by the judge, whether the not having a sufficient person to manage the ship when the captain was ill, amounted to a breach of the warranty. Id.

Law v. Hollingsworth, 7 T. R. 160. It was mooted in this case, but the court refrained from expressing their opinion, whether it is essentially necessary, to the right of the assured to recover, that in navigating up the Thames, there should be a pilot on board qualified according to the directions of the statute.

Busk v. Royal Exchange Assurance Company. 2 B. & A. 73.

'Per Bayley, J., in Walker v. Maitland, 5 B. & A. 173. (7 Eng. C. L. 59.) Shore v. Bentall, 7 B. & C. 798, n. (14 Eng. C. L. 130.) Bishop v. Pentland, Id. 219. (14 Eng. C. L. 33.)

• Holdsworth v. Wise, 1 M. & R. 673. 7 B. & C. 794. (14 Eng. C. L. 129.)

casualities; if she had a competent force to pursue any part of *1192 *her adventure, and could be safely navigated home, she is to be deemed seaworthy."

If a vessel at the outset of her voyage be by mistake or accident unseaworthy, owing to some defect which is remedied before any loss happens in consequence of it, the policy will not, on that account, be void. Therefore where a ship insured at and from a port, sailed on her voyage in an unseaworthy state, in consequence of having a greater cargo than she could safely carry, and the defect was discovered before any loss accrued, and part of the cargo was discharged, and a loss subsequently accrued, in no degree attributable to her having been overladen in the early part of her voyage; held, that the underwriters were liable for such loss.b

In a policy by a member of a mutual insurance club, there was a memorandum, amongst other exceptions, warranties, rules, terms, conditions, and agreements, that "all ships were to be inspected and approved by a committee of the club, and that all chain cables were to be properly tested;" held, in an action for a loss, that it was not a condition precedent which made it necessary for the insured to prove that a chain cable had been tested previously to the voyage.

A devia

the usual course of the voy

SECTION XVI.

DEVIATION.

By deviation is meant a departure, without necessity or justion from tifiable cause, from the usual course of the voyage insured. By the terms of the contract, the insurer only runs the risk of the voyage agreed upon, and of no other; it is therefore a conage, with- dition necessarily implied in the policy, that the ship shall proout neces- ceed to her port of destination, by the shortest and safest sity, will course. If the insured deviated without necessity or a justifiable cause, it is a breach of the implied warranty, the effect *of which is not to avoid the policy, but to discharge the underwriter from all subsequent responsibility. As if a ship or goods be damaged before deviation, and be lost after deviation the insurer is not answerable for the loss, but he is responsible for the damage sustained previous to the deviation. The

vitiate the

policy.
*1193

Harrison v. Douglas, 5 Nev. & M. 180. 3 Adol. & Ellis, 396. (30 Eng. C. L. 125.) 1 Harr. & Woll. 380. Payment of money into court in an action on a policy admits that the ship was seaworthy. Id.

d Green v. Young, 2 Lord Raym. 842.

Marsh. 184. Davis v. Garrett, 6 Bing. 716. (19 Eng. C. L. 212.) 4 M. & P.

reason why a deviation discharges the underwriter is, not that the risk is thereby increased, but because the insured has without necessity substituted another voyage for that which was insured, and thereby varied the risk. The shortness of the time or of the distance makes no difference as to its effect on the contract; whether it be for a month, or for one mile, or for one hundred, the consequence is the same.b

t

Where goods were insured from Dunkirk to Leghorn and the ship came to Dover, in her way to procure a Meditteranean pass, it was held to be a deviation.

deviation.

If a ship insured for one voyage sails upon another, though What conshe be taken before the dividing point of the two voyages, it stitutes a is a deviation which discharges the insurer. But if the ship sails on the intended voyage, and a deviation is afterwards intended, which is not carried into effect, it will not avoid the policy. "Where the insurance is on a voyage to a given place, and the captain when he sails does not mean to go to that place at all, he never sails on the voyage insured. But where the ultimate termini of the intended voyages are the same as those described in the policy, although an intermediate voyage be contemplated, the voyage is to be considered the same until the vessel arrives at the dividing point of the two voyages. The departure from the course of the voyage insured then becomes a deviation; but before the arrival at the dividing point, there is no more than an intention to deviate, which, if not not carried into effect, will not vitiate the policy. Where a *policy was effected on goods from Liverpool to London, *1194 and the captain took in goods at Liverpool for Southampton as well as for London, intending to go first to Southampton, the termini of the voyage being the same as those described in the policy; it was held, to be the same voyage until the vessel reached the dividing point; and that the policy attached so far, though putting into Southampton was a deviation.g

If where there are several courses or modes of performing a voyage, the master select a particular track for a purpose foreign to the voyage, instead of adopting that which is the safest, considered merely with reference to the voyage insured, it is a deviation which will avoid the policy.h

A clause is frequently introduced into policies giving liberty Liberty to to the insured to touch, stay, trade, &c., at any port or places; touch,

stay, &c.

Per Lord Mansfield, C. J., in Lavatre v. Wilson, Doug. 291. Hare v. Travis, 7 B. & C. 14, (14 Eng. C. L. 4,) post.

Id.

a Wooldridge v. Boydell, Doug. 16.

с

• Townson v. Guyon, Marsh. 186.

• Foster v. Wilmer, 2 Stra. 1249. Thelluson v. Fergusson, Doug. 361. Kewley v. Ryan, 1 H. Bl. 343.

' Per Bayley, J., in Hare v. Travis, 7 B. & C. 17. (14 Eng. C. L. 4.)

Id. When the vessel arrived at London the goods insured were found damaged; it was held, that the evidence was properly left to the jury, to say whether the goods were damaged previous to the ship deviating from the direct course. Id.

Middlewood v. Blakes, 7 T. R. 162.

At and from.

a liberty to touch "at any port or place whatsoever, for all purposes," must be taken to mean for some purpose connected with the voyage; therefore, if the insured touch at any port or place, for a purpose unconnected with the object of the voyage, it will avoid the policy."

Where a vessel insured on freight at and from London to Grenada arrived in safety, and proceeded to deliver her outward cargo in different bays of the island, (when there was but one custom-house,) and was lost in entering a bay to which she was going, for the double purpose of delivering the remainder of her outward, and taking in a homeward cargo; held, that this was not a deviation, and that the underwriters were liable for the loss of the homeward freight; for the employment in which the ship was engaged at the time of the loss was necessarily connected with the homeward voyage. But where a vessel was insured" at and from her port of loading in North America, to her port of discharge in England," and she took in part of her cargo at Cockaigne, in New Brunswick, and then 1195 sailed further up to Bucktush, a place within seven miles of Cockaigne, higher up in the same bay, and within the general jurisdiction of the same custom-house at St. John's, but having a custom-house officer, equally with Cockaigne, entitled to grant clearances. At Bucktush she took in a further part of her cargo, and returning to Cockaigne, there completed her cargo; held, in an action for a loss which occurred after the vessel had sailed on her voyage, that the going to Bucktush after she had commenced taking in her cargo, was a deviation which vitiated the policy; for the expression, " from her port of loading," meant one single place; therefore, when the ship once began loading at Cockaigne, it ought to have finished there; going to any other place was a deviation.

Port of

loading means one single place.

Of the order in which

be touched at.

Under a policy from London to the ship's discharging port or ports in the Baltic, with liberty to touch at any port or ports for orders, or any other purpose; the ship in touching for ports must orders before she has selected her port of discharge, is not confined to take the ports in the successive order in which they lie in the course of the voyage, but may return to a port she has quitted, for orders as to her port of discharge. But after she has selected her port of discharge, she must touch at ports only in their successive order. If ports of call are named in a policy in a successive order, the ship must take them in the same succession in which they are named.

Rucker v. Allnutt, 15 East, 278. Langhorn v. Allnutt, 4 Taunt. 519. Hammond v. Reid, 4 B. & A. 73. (6 Eng. C. L. 354.) Solly v. Whitmore, 5 B. & A. 46. (7 Eng. C. L. 17.)

Warre v. Miller, 7 D. & R. 1. 4 B. & C. 538. (10 Eng. C. L. 405.)
Brown v. Tayleure, 1 Harr. & Woll. 578. 5 N. & M. 472.

Andrews v. Mellish, (in Error,) 5 Taunt. 496. (1 Eng. C. L. 170.) 2 M. & S. 27. 16 East, 312.

See Hunter v. Leathly, 10 B. & C. 858, (21 Eng. C. L. 184,) (in Error.) 7 Bing. 517. (20 Eng. C. L. 221.) 1 C. & J. 423. Driscol v. Bovil, 1 B. & P. 316.