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The jury found a verdict for the plaintiffs. On a motion for a new trial, it was contended, that as the ship did not sail until ten days after the policy was effected, the risk was in no respect varied by the concealment of the letter; that unless the circumstance concealed would vary the amount of the premium, the concealment would not vitiate the policy; that the expectation of the shipper in this case, which was not realized by the sailing of the ship at the expected time, was not material, and therefore need not be communicated to the underwriters. But Sir J. Mansfield C. J. conceived that the letter was material to be communicated to the underwriters, in order that they might have an opportunity of exercising their judgment in settling the premium. Had it not been for the opinion of the jury, he should not have entertained the least doubt upon the subject. But though great respect was due to their opinion, still he thought their judgment had been too hastily formed, and that the case ought to be reconsidered (41).

"The reason of the rule which obliges the party to disclosek, is to prevent fraud, and encourage good faith; it is adapted to such facts as vary the nature of the contract, which one privately knows, and the other is ignorant of, and has no reason to suspect." The question, therefore, in cases of this kind is, "Whether there were, under all the circumstances, at the time the policy was underwritten, a fair statement or a concealment, fraudulent, if designed, or, though not designed, varying materially the object of the policy, and changing the risk understood to be run ?"

Information respecting the subject matter of warranty, either express or implied, need not be communicated to 'the underwriter, unless there be a specific request on his part for such information.

Hence in the case of Shoolbred v. Nutt, Park, 229. a.

k Per Ld. Mausfield C. J. in Carter v. Boehm, 3 Burr. 1905. cited by Ld. El lenborough C. J. delivering judgment in Haywood v. Rodgers, 4 East, 596.

(41) The nature of this work will not permit the insertion of all the cases relating to concealment; neither is it necessary, since the reader will perceive that they are cases depending wholly on their own special circumstances. If he is desirous of pursuing the subject, he may peruse the following cases: Seaman v. Fonereau, Str. 1183. Carter v. Boehm, 3 Burr. 1905. 1 Bl. R. 594. Webster v. Foster, 1 Esp. N. P. C. 407. Littledale v. Dixon, 1 Bos. & Pul. N. R. 151. Freeland v. Glover, 7 East, 457. Lynch v. Hamilton, 3 Taunt. 37. Bell v. Bell, 2 Camp. N. P. C. 479.

where the owner had received letters from his captain the day before he effected the insurance, stating, that the ship had arrived at Madeira, but was very leaky, and that the pipes of wine had been half covered with water, which letters were not communicated to the underwriters; Lord Mansfield told the jury, " That there should be a representation of every thing relating to the risk which the underwriter has to run, except it be covered by a warranty. It is a condition, or implied warranty, in every policy, that the ship is seaworthy, and therefore there need be no representation of that. If she sail without being so, there is no valid policy. Here the leak was stopped before she sailed from Madeira, and she sailed in good condition from thence, and there is no occasion to state the condition of a ship or cargo at the end of the former voyage." Verdict for plaintiff.

So where in an action on a policy of insurance upon a ship from Trinidad to London', it appeared that the assured had received a letter from his captain, informing him that he had been obliged to have a survey on the ship at Trinidad, on account of her bad character, but the survey, which accompanied the letter, gave the ship a good character; it was holden, that the concealment of the letter and survey from the underwriter, did not vacate the policy, inasmuch as the assured impliedly warranted the ship to be seaworthy, and it did not appear that he had concealed any circumstance relative to the seaworthiness of the ship, or that at the time of effecting the policy he knew of any fact which rendered her, with reference to the risk, otherwise than sea-worthy.

It will be presumed that the underwriter is acquainted with the usage and circumstances of the branch of trade to which the policy relates, and consequently the assured is not bound to make a disclosure thereof; as e. g. upon an insurance on an East India voyage, the underwriters are bound to know the course of the East India Company's charter-parties and trade, and that the ship's destination is liable to be changed after the policy is effected". If the usage of the trade is general, it is immaterial for this purpose that it is not uniform":

Haywood v. Rodgers, 4 East, 590.
Vallance v. Dewar, 1 Camp. N. P. C.
503. Ougier v. Jennings, ib. 505. u.
Kingston v. Knibbs, ib. 508. n.

n Grant v. Paxton, 1 Taunt. 463.
o See cases in note m.

3. Breach of Warranty;

Express

Implied

1. Time of sailing.

2. Safety of Ship at a particular Time. 3. To depart with Convoy.

4. Neutral Property.

1. Not to deviate.

12. Seaworthiness.

Another ground of defence which may be taken by the underwriter to defeat the action, is the non-compliance with a warranty, either express or implied.

Every warranty incorporated in the body of the policy, or appearing on the face of the instrument, e. g. in the margin, or at the bottom of the policy, or inserted in any print or writing, which is by reference incorporated with the policy, must be strictly and literally complied with (42); and in this respect it is distinguishable from a mere representation, which, if it be substantially fulfilled, it is sufficient.

The most usual kinds of warranties, inserted in policies, are, 1. As to the time of sailing. 2. The safety of the ship at a particular time. 3. Departing with convoy. 4. That the thing insured is neutral property.

I shall proceed to consider the nature of these warranties in the preceding order.

Express Warranty. 1. Time of sailing.-A ship, which was insured at and from Jamaica to London, warranted to have sailed on or before a particular day, with a return of premium in case of convoy', sailed before the day from the port of her lading, with all her cargo and clearances on

P

Bean v. Stupart, Doug. 11. De Hahn v. Hartley, 1 T. R. 343.

93 T. R. 360.

r Worsley v. Wood, 6 T. R. 710. Rout
ledge v. Burrell, 1 H. Bl. 254.
s Bond v. Nutt, Cowp. 601,

(42) "A warranty in a policy of insurance is a condition or a contingency, and unless that be performed, there is not any contract. It is perfectly immaterial for what purpose a warranty is introduced; but being inserted, the contract does not exist, unless it be literally complied with." Per Lord Mansfield C. J. 1 T. R. 345, 6. The very meaning of a warranty is to preclude all questions, whether it has been substantially complied with; it must be literally so." Per Ashhurst J. 1 T. R. 346.

board, to the usual place of rendezvous at another part of the island, in order to join the convoy which then lay ready, where she arrived in safety, but was detained there by an embargo beyond the day. It was holden, that although the place of rendezvous was out of the direct course of the voyage, yet, as the ship, when she sailed from the port of lading, had not any view or object but to make the best of her way to England, and as she did not go to the place of rendezvous for any purpose independent of the immediate prosecution of her voyage, the voyage began from the port of lading, and consequently the warranty had been complied with.

A French ship was insured "at and from Guadaloupe to Havre," warranted to sail on or before a particular day. The ship took in her compleat lading, and all her clearances, at Point-a-Pitre, and sailed thence before the day for Basseterre, a condition having been inserted in one of the clearances, that the ship should pass that way to take the orders of government, and the captain also expecting, in consequence of a notice which had been given by his governor, that there would be a convoy at that place. It appeared that the captain had paid an extra fee in order to procure his clearances, that he might take the benefit of the convoy. The ship arrived at Basseterre two months before the day on which she was warranted to sail, and was detained there by the governor until after the day. It was proved that Basseterre was in the direct course of the voyage. Under these circumstances, it was holden, that there had been a bonâ fide and complete inception of the voyage, on the day the ship sailed from Point-a-Pitre, and consequently that the warranty had been complied with.

A ship was insured" "at and from Surinam and all or any of the West India islands (except Jamaica) to London, warranted to sail on or before the 1st of August." The vessel sailed before the 1st of August from Surinam, where she had taken in her homeward cargo, and arrived at Tortola, one of the West India islands, on the 4th, to find the convoy, but the proper convoy having before that time sailed with the trade, she afterwards took sailing instructions from another ship as convoy, and was lost in her voyage home. The underwriters contended, that by the terms of the po licy, the vessel ought to have sailed from the last of the West India islands at which she meant to touch on or before the 1st of August; and that her sailing from Surinam

t Thellusson v. Fergusson, Doug. 361. u Wright v. Shiffuer, 11 East,515, 2 Camp. N. P. C. 247. S. C.

for Tortola, so as not to arrive there in the ordinary course till the 4th, and, consequently, not being able to sail from Tortola till after the 1st, was a breach of the warranty, and precluded the plaintiff from recovering. But the court were of opinion, that there was a bonâ fide compliance with the terms of the warranty, according to the meaning of the parties.

2. Safety of Ship at a particular Time.-Goods were insured from the lading of them, on board a certain ship, "lost or not lost," and at the bottom of the policy was added, "warranted well on a particular day." It appeared that the defendant underwrote the policy in the afternoon of that day, and that the ship was lost about eight o'clock in the morning of the same day. It was holden, that the warranty did not mean that the ship was well at the time when the defendant subscribed the policy, but at any time on that day, and consequently that it had been complied with.

Action on policy of insurance against fire on ship Hero, for one month, on the terms that the ship should be safe moored in the harbour of Portsmouth during the period for which the insurance was made; the ship was accidentally burned within that time. It appeared in evidence, that the ship was first moored off the beach, in order to clear her bottom; she was then removed to Hardway, and lastly was moored at March's wharf, in order the more conveniently to take in her cargo, but had never been taken out of the harbour. It was insisted for the defendant, that the removing the ship from her moorings at one place to the other, was a discontinuance of the risk; so also the laying her down on the beach to clear her bottom. But, per Lord Ellenborough C. J., "where a vessel is only removed from one part of the harbour to the other, for the more convenient purpose of repairs, or of taking in her cargo, but does not go beyond the bounds of the harbour, and is safely moored at the different parts of the harbour, when she is so removed according to the policy, it is not such an act as will avoid the policy." Verdict for plaintiff.

3. To depart with Convoy.-The next species of warranty which falls under consideration, is a warranty that the ship insured shall sail or depart with convoy, by which term is to be understood, "a naval force under the command of a person appointed by the government of the country, to which the vessel insured belongs."

x Blackhurst v. Cockell, 3 T. R. 360. y Clarke v. Westmore, London sittings, B. R. 25 May, 1807.

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