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Park, p. 598.

Waltham v.
Thompson.

2 Henry BlackD. Be

merchant, and make the underwriter liable; "for," said Lord Mansfield, "to hold otherwise, would be heaping Marshall,p.381," misfortune upon misfortune." If, however, she lose her proper position in the convoy through negligence, the warranty will be broken. But the undertaking is complied with, if the ship sail with the best convoy that can be found, although going short of the place of her destination; for the captain of a merchant ship has nothing to do with, nor can he know the instructions. point; Id. 511, from the Admiralty to the King's officers. De Garey v. Claggett; and see Marshall on Insurance, 373, Manning v. Gist, to the same effect.

stone, 551, D'Eguino v. wicke.

Park, p. 510,

Smith v. Read

shaw, same

4 Campb. 54, Magalhaens v. Busher.

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 the convoy, his undertaking to sail under such a protection 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 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 commodore.

Ridsdale v.

Shedden.

notis, Sander

son v. Busher.

Park p. 510,
Taylor v. Wood-

ness.

See Abbott on
Shipping. 5th

ed. p. 234-239;
Park, p. 512-
515; Marshall,
366-389.

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 being a warranty to sail with convoy, the plaintiff was nonsuited in an action on his policy.

The termination of war having rendered the convoy acts no longer necessary, the reader is referred here to the text books, which contain the decisions upon the subject.

"Warranted to sail on or before" or "after" particular days.

more.

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 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 afterwards detained by an embargo before she had quitted the island, there was no breach of a warranty to sail on or before the 1st of August. And it was considered to make no difference that the captain was obliged to go home by a particular place to take the orders of Government.

Vezian v. Grant.

Cowper, 601,
Bond v. Nutt.
Douglas, 360,
Thelusson v.
Fergusson; Id.

357, Earle v.

Harris; and see

other cases determining 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 Demerara; the tide, however, being low, he anchored, and did not cross the shoal till the 3rd: this was held a sufficient fulfilment of the warranty.

A different construction, however, is given to the word, "depart."

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3 Barnewall & Cresswell, 495,

Lang v. Anderdon.

3 Maule & Selwyn, 462, by Lord Ellenbo

rough.

The language of the underwriter in that case amounts to this: "I will be answerable for all perils upon the high seas, but let the vessel be well out of [her port] by 3 Maule & Selsuch a day." And the distinction between the warranties wyn, 461, Moir "to sail" and "to depart" has been fully recognized. v. Royal Ex

change Assur

ance; 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

3 Manle & Sel- to sail, if a ship drop down the river with an incomplete wyn, 456, Ridscrew, thus showing, that her preparations for the voyage dale. Newnare not perfect, the warranty will not be complied with.

hain.

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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 Burrow, 1419, ship belongs, and is therefore guilty of falsehood if he assert her neutrality contrary to the fact.

Woolmer v.

Muilman. Douglas, 732, Eden v. Parkison; 3 Term

Rep. 477, Tyson v. Gurney, same point.

Puller, 207, in

notis, Tabbs v. Bendelack.

But it is enough that the vessel be neutral at the commencement of the risk, the warranty is, that things stand so at the time, not that they shall continue.

"Warranted an American," "Dane," &c. &c.

A person who trades in this country, though born in 3 Bosanquet & America, cannot warrant his property to be American, and where a plaintiff did so, he was nonsuited in an action on his policy. And where a ship is warranted as of any particular country, she ought to be entitled to all the privileges of the flag of that country, and it is not sufficient that she fulfil the literal description in the policy. The sentences of foreign Courts of Admiralty are conclusive evidence of neutrality, or of a want of compliance with a warranty of this kind, provided such courts be Hughes v. Cor- duly constituted.

7 Term Rep. 705, Rich v. Parker.

Seutences of foreign Courts upon this subject decisive.

2 Shower, 232,

nelius; 3 Bosanquet & Puller, 201, Baring v. Clagett; 5 East, 398, Baring v. Christie.

Park, p. 526,

Barzillay v.
Lewis.

Park. p. 528,
Saloucci v.
Woodmas; 7

Term Rep. 681,
Geyer v. Agui-
lar; and see
Bell v. Cars-

Thus where a ship was warranted Dutch, but was condemned on the special ground of her not being Dutch, this sentence was deemed to be conclusive against the insured.

So where a vessel, warranted neutral, was condemned generally "as good and lawful prize," the Court held this sentence conclusive evidence of the falsehood of the

tairs, 14 East, plaintiff's warranty. So where a French Court con

374.

demned a ship on the ground of an infraction of treaty for not being properly documented, the sentence was held binding.

5

East, 99, Baring v. Royal Ex. Assurance; see

Park, 544, Kindersley v. Chase; 3 Bosanquet & Puller, 499, Lothian v. Henderson; 5 East, 155, Bolton v. Gladstone.

And thus it 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.

search.

But in order to establish the infallibility of this sentence, it is necessary, first, that the Court have sufficient jurisdiction.

230, Garrels v. Kensington,

268, Havelock v. Rockwood.

And see 1 Robinson, 135, The Flad Oyen.

For where the French Consul at Bergen in Norway, 8 Term Rep. a neutral state, condemned a British ship there, such sentence was deemed clearly illegal, and the assured, who had repurchased his ship at a public auction at 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.

Donaldson v.

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, be removed.

And although a vessel was condemned as belonging to the enemies of the French Republic, yet as she was

Bemardi v.Motteux.

8 Temp. Rep.

192, Christie v. Secretan.

7 East, 367, Dawson v. Atty.

Park, p. 531,
Mayne v. Wal-

ter.

8 Term Rep. 434, Pollard v. Bell.

1 East, 663,

Price v. Bell.

2 New Rep.
484, Siff ken v.
Lee.

1 Campb. 418'

Fisher v. Ogle. 7 Term Rep. 523, Calvert v. Bovill; Park, P.

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not warranted to belong to any particular country, the underwriters were held liable; and, there being no warranty, it makes no difference that she has not got the proper documents on board (g).

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 Portuguese, was condemned for having an English supercargo on board; where a ship, warranted a Dane, was condemned for having a chief officer, being an enemy, on board, the captain being a Scotchman; where there was a condemnation for the breach of certain French ordinances in all these cases the assured recovered. And it makes no difference that damages and costs have been refused, because a French ordinance has not been observed, there being, in fact, no condemnation; for, said Mansfield, C. J.: "I see no reason for extending "the doctrine of the conclusiveness of the sentences of "courts of admiralty."

Further, a foreign sentence will not be conclusive unless it directly and specifically adjudicate; matters to be gathered by inference, and an intention to condemn for breach of warranty, cannot be suffered to operate in Johnson; (but the absence of a distinct statement.

556, Saloucci v.

one of the

points in this last case, that a neutral ship cannot be stopped to be searched has been overturned by Garrels v. Kensington, 8 Term Rep. 230 ;) 5 Robinson, 365, The Maria,

Warranty generally.

"Warranted well this

day of, &c." The ship was well at six in the morning, but was lost

(q) 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.

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