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merchant, and make the underwriter liable; “ for,” said Park, p. 508. Lord Mansfield, “ to hold otherwise, would be heaping Marshall,p.381, “ misfortune upon misfortune.” If, however, she lose Thompson.
her proper position in the convoy through negligence, 2 Henry Black. the warranty will be broken. But the undertaking is
complied with, if the ship sail with the best convoy that D'Eguino v. Be. wicke. can be found, although going short of the place of her Smith's. Read. destination; for the captain of a merchant ship has shaw, same nothing to do with, nor can he know the instructions point; Id, 511, from the Admiralty to the King's officers. Claggeit; and see Marshall on Insurance, 373, Manning v. Gist, to the same effect.
And if the master make every exertion to join convoy, after waiting to take the plaintiff's (the assured's) goods
on board, but being unable to come up, proceed without 4 Campb. 57,
his undertaking to sail under such a protecMagalhaens v.
tion will have been complied with. And the want of -4 Campb. 107, proper pilots will furnish an excuse. But if the ship be
allowed to have sailed without convoy, the unfavourable Shedden.
state of the weather will be no defence, as where a calm 4 Campb. 54, in and a current prevented the ship from overtaking the notis, Sander
commodore. sun v. Busher.
And where a captain of a merchant vessel neglected the commodore's signals, and did not sail for two hours
afterwards, whereby she was taken by a privateer, there Park p. 510,
being a warranty to sail with convoy, the plaintiff was Taylor v. Wood.
nonsuited in an action on his policy. See Abbott on The termination of war having rendered the convoy Shipping. 5th ed. p. 234-239;
acts no longer necessary, the reader is referred here to Park, p. 512- the text books, which contain the decisions upon the 515; Marshall, 366-389.
“ Warranted to sail on or before" or "after" particular days. This warranty is construed with particular strictness. Cowper, 784, So that an embargo which detained the ship beyond the Hore v. Whittime of sailing, was held to occasion a breach of the warranty. And so it was where a ship was warranted Park, p. 485, to sail after the 12th of January, and in point of fact she Vezian v. Grant. sailed on the 6th of the previous November.
Where, however, the ship having every thing ready for her voyage leaves the port of her loading, for ever so short a distance, the warranty is satisfied. As where a vessel sailed on the 26th of July, with all her cargo and clearances, from her port at Jamaica to another part of the island for the sake of joining convoy; although she was Cowper, 601, afterwards detained by an embargo before she had quitted Bond v. Nutt. the island, there was no breach of a warranty to sail on or Thelusson v.
Douglas, 360, before the 1st of August. And it was considered to make Fergusson; Id.
357, Earle v. no difference that the captain was obliged to go home by Harris ; and see a particular place to take the orders of Government.
termining the same point in Park, p. 494 ; 11 East, 515, Wright v. Shiffner. A short sail is sufficient. The captain was bound to sail from Demerara on or before the 1st of August; on that day he unmoored, and dropt down the river at 3 Barnewall & Demerara ; the tide, however, being low, he anchored, Cresswell
Lang v. Andere and did not cross the shoal till the 3rd : this was held don. a sufficient fulfilment of the warranty.
A different construction, however, is given to the word, “ depart.” The language of the underwriter in that case amounts 3 Maule & Sel
wyn, 462, by to this : “ I will be answerable for all perils upon the Lord Ellenbo“ high seas, but let the vessel be well out of [her port] by,
3 Maule & Sel. such a day.” And the distinction between the warranties wyn, 461, Moir “ to sail” and “ to depart” has been fully recognized.
v. Royal Ex
change Assurance; 6 Taunton, 241, where the same doctrine was established
in the Common Pleas, in an action upon the same policy. We have seen, notwithstanding, that every thing must be complete for the voyage, so that even upon a warranty
other cases de
3 Manle & Sel- to sail, if a ship drop down the river with an incomplete wyn, 456, Rids. dale ». New
crew, thus showing, that her preparations for the voyage are not perfect, the warranty will not be complied with.
“Warranted a neutral ship, and neutral property." A breach of this warranty will vitiate the contract ab initio, whereas a non-compliance with those already mentioned only avoids it, and the reason is, because an
assured must be cognizant of the country to which his 3 Borrow, 1419 ship belongs, and is therefore guilty of falsehood if he Woolmer v. Muilman. assert her neutrality contrary to the fact. Douglas, 732, But it is enough that the vessel be neutral at the Eden o. Parki
commencement of the risk, the warranty is, that things son ; 3 Term Rep. 477, Ty- stand so at the time, not that they shall continue. son v. Gurney, same poiut.
“Warranted an American," “Dane," &c. &c.
A person who trades in this country, though born in 3 Bosanqnet & America, cannot warrant his property to be American, Paller, 207, in
and where a plaintiff did so, he was nonsuited in an action notis, Tabbs . Bendelack. on his policy. And where a ship is warranted as of
any particular country, she ought to be entitled to all the 7 Term Rep. 705, Rich .
privileges of the flag of that country, and it is not sufParker. ficient that she fulfil the literal description in the policy. Seulences of The sentences of foreign Courts of Admiralty are conforeign Courts upon this sub
clusive evidence of neutrality, or of a want of compliance ject decisive.
with a warranty of this kind, provided such courts be 2 Shower, 232, Hughes v. Cor duly constituted. nelius ; 3 Bosanquet & Puller, 201, Baring v. Clagett; 5 East, 398, Baring v. Christie.
Thus where a ship was warranted Dutch, but was Park, p. 526, condemned on the special ground of her not being Dutch, Barzillay v. Lewis. this sentence was deemed to be conclusive against the Park. p. 528,
insured. Saloucci v. Woodmas; 7
So where a vessel, warranted neutral, was condemned Term Rep. 681generally “as good and lawful prize,” the Court held Geyer 0. Aguilar; and see this sentence conclusive evidence of the falsehood of the Bell v. Cars. lairs, 14 East,
plaintiff's warranty. So where a French Court con374
demned a ship on the ground of an infraction of treaty for not being properly documented, the sentence was
5 East, 99, Bar
ing v. Royal Ex. held binding
Assurance; see Park, 544, Kindersley v. Chase; 3 Bosanquet & Puller, 499, Lothian v. Henderson; 5 East,
155, Bolton v. Gladstone. And thus't was again, where the master and crew had forcibly rescued their ship, which had been carried into the port of a belligerent power for the purpose of 8 Term Rep:
230, Garrels v. search.
Kensington, But in order to establish the infallibility of this sentence, it is necessary, first, that the Court have sufficient jurisdiction. For where the French Consul at Bergen in Norway, 8 Term Rep.
268, Havelock a neutral state, condemned a British ship there, such
v. Rockwood. sentence was deemed clearly illegal, and the assured, And see i Rowho had repurchased his ship at a public auction at binson, 135,
The Flad Oyen. Bergen, could not recover the amount of his repurchase against the underwriters.
But where the vessel is. 2 East, 473, carried into the port of a belligerent power, an ally, the Oddy v Bovill. condemnation is valid. That, however, is not such a belligerent power, if the forms of a neutral government 1 Campb. 429, be preserved in the country, though the belligerent Thompson. may have so large a force there as to overawe the authorities.
Secondly, it is requisite that the condemnation should proceed upon the particular ground of a breach of neutrality. As where a sentence was promulged, upon which it was exceedingly difficult, by reason of its obscurity, to discover the cause of the confiscation, the plaintiff was suffered to recover, though Lord Mansfield was inclined to think that the ship had been condemned as enemy's property, and he said, that if the foreign courts would insert words to that effect, all doubt would Douglas, 575,
Bemardi v.Molbe removed.
And although a vessel was condemned as belonging to the enemies of the French Republic, yet as she was
Park, p. 531;
8 Temp. Rep. not warranted to belong to any particular country, the
underwriters were held liable; and, there being no war-
proper documents on board (9).
Still less will the sentence be conclusive, if it do not proceed on the ground of neutrality, but of the breach
of some partial ordinance. As where a vessel, warranted Mayne v. Wal
Portuguese, was condemned for having an English
supercargo on board; where a ship, warranted a Dane, 8 Term Rep. was condemned for having a chief officer, being an 434, Pollard o. Bell.
enemy, on board, the captain being a Scotchman; where i East, 663,
there was a condemnation for the breach of certain French Price v. Bell.
ordinances: in all these cases the assured recovered.
said Mansfield, C. J.: “I see no reason for extending 2 New Rep. or the doctrine of the conclusiveness of the sentences of 484, Siff ken v.
“ courts of admiralty.” i Campb. 418 Further, a foreign sentence will not be conclusive Fisher v. Ogle.
unless it directly and specifically adjudicate; matters to 7 Term Rep. 523, Calvert v. be gathered by inference, and an intention to condemn Bovill; Park, p. for breach of warranty, cannot be suffered to operate in 556, Saloucci v. Johnson ; (but the absence of a distinct statement. one of the points in this last case, that a neutral ship cannot be stopped io be searched has been overturned by Garrels v. Kensington, 8 Teri Rep. 230 ;) 5 Robinson, 365, The Maria,
Warranted well this
&c.” The ship was well at six in the morning, but was lost
(9) A ship having leave to carry simulated papers, and incurring a condemnation on that account, is within the protection of a policy. But, if she have not leave, the condemnation will not affect the assurer, who is discharged. 15 East, 364, Bell v. Bromfield; Id. 46, Homeyer v. Lushington, with leave ; and Id. 70, Oswell v. Vigne, without leave.