Charles Edward Pollock Frederic Philip Maude.

Compendium of the law of merchant shipping online

. (page 43 of 101)
Online LibraryCharles Edward Pollock Frederic Philip MaudeCompendium of the law of merchant shipping → online text (page 43 of 101)
Font size
QR-code for this ebook

some miles beyond the mouth of the river, it was held that the
warranty had been observed (z). In such cases the vessel must
sail with the bona fide intention of proceeding with the voyc^e,
and not merely for the purpose of satisfying the warranty. A
vessel in Dublin harbour, warranted not to sail after the 16th
August, was on that day cleared and taken out of dock, and
warped down the river as far as possible. The following day
she was warped further down, but could not proceed to sea,
owing to the state of the wind, until the 17th. The Court held,
that if what was done had been done merely for the purpose of
complying with the warranty, the warranty was not satisfied;
but that it was otherwise if the master had acted with the bona
fide intention of placing the ship in a more favourable position
with regard to the prosecution of her voyage, or if he had acted
partly with that intention, and partly in order to comply with
the warranty (a).

If a vessel be insured " at and from" several ports to sail on
or before a particular day, the warranty is complied with if she
leaves her final port of loading before that day, although she
afterwards touches at another of these ports in order to join
convoy (6). Under an insurance "at and from" an island, to

(«) Hore V. Whitmore, 2 Cowp. 784. (a) Cochrane v. Fisher ^ 2 C.& M . 581.

(x) See the judgment of Lord Ten- On the second trial the jury found that

terden in PUtegrew v. Pringle, 3 B. & the master had intended to sail on the

Ad. '514. 15th, and that he had used proper ex-

(y) Bond v. NtUt, 2 Cowp. 601 ; see ertions to do so. See I C, M. & R.

also Earle v. ffarrUf 1 Doug. 357 ; Thel- 809.

buson ▼. Fergusson, ib. 361. (b) Wright v. Shifner, 2 Camp. 247 ;

(«) Lang V. Jnderdon, 8 B. & C.495. 11 East, 515.


Digitized by



sail after a given day, the moving from port to port in that island
before that day is not a violation of the warranty (c). Where a
ship was insured " at and from New York to Quebec daring
her stay there, thence to the United Kingdom, the ship being
warranted to sail from Quebec on or before the 1st November,"
and the vessel was lost on her voyage from.New York to Quebec,
but she had not sailed from New York at a time reasonably
sufficient to have enabled her to sail from Quebec on the day
mentioned, it was held that the underwriters were nevertheless
liable, since the warranty could not be extended by inference to
an undertaking to leave New York by any particular time (rf).

Where the warranty, instead of being " to sail," was " to
depart," it was held to be necessary that the ship should not
only have broken ground on the day named, but that she should
be then out of the port, or at sea {e).

To sail with A convoy is a naval force, consisting of a ship or ships ^p-

convoy. pointed by the government, or by the commander of a particular

station, to escort and protect merchant ships proceeding to on-
tain ports. The warranty to sail with convoy is not satisfied
by obtaining the protection of a single man-of-war, which is not
in fact part of the convoy, and the captain of which has not
obtained sailing orders (/).

This warranty implies that the ship shall sail with convoy for
the whole voyc^e (g) ; and if a convoy be appointed for the
same voyage as that on which the ship insured is bound, she
must sail with that convoy. If she sail with a convoy appointed
for another voyage, although the course is nearly the same for a
great part of the way, this will not suffice (A). In practice the
government usually appoints a place of rendezvous from which
the convoy sails, and the warranty is satisfied if the ship sail
with convoy thence (i),

(c) Cruikthank ▼. Janson, 2 Taunt. convoy during hostilities. See Long ▼.

801. Dutt, 2 B. & P. 209 ; Cohen v. HmckUy^

{d) Baines v. Holland, 10 Ex, 802. 1 Taunt. 249 ; Hinckley ▼. WaUon, 3

(e) Moir v. The Royal Exchange As- Taunt. 131.
surance Company, 4 Camp. 84; 3 M. & {g) Lilly v. Ewer, Doug. 72 ; see also

S. 461 ; 6 Taunt 241 ; and see the cases Jefferye$ v. Legendra, Show. 297 ; S. C

cited, ante, p. 334, note (o). 3 Lev. 320 ; 2 Salk. 443.

(/) Hibbert v. Pigou, 2 Park on Ins. (A) Cohen v. Hinckley, uH supra. This

498. The 13 Car. 2, st. l^c 9, and the was a decision on the Convoy Act, 43

22 Geo. 2, c. 33, directed that com- Geo. 3, c. 57, but it is applicable to other

manders of King's ships should take cases.

care of vessels under convoy. The 38 (i) Lethulier't Cote, 2 Salk. 443 ; Bond

Geo. 3, c. 76, and 43 Geo. 3, c. 67, re- v. Gonsales, ib. 445 ; Gordon v. MorUy :

quired all British ships to sail under Campell v. Bordieu, 2 Str. 1265.

Digitized by


insuranO£. 337

Where a policy provided that a dhip might sail to the place
of rendezvous to join convoy, it was held that she was protected
in proceeding thither, although there was a convoy for ships on
other destinations between her loading port and the appointed
rendezvous {k). On the same principle, a warranty to sail with
convoy for the voyage, means that the ship shall sail with such
a convoy as the government may appoint (0* Whether, there-
fore, the insured vessel proceed under relays of convoy from
station to station (m), or the ships of war keep with her for a
portion only of the voyage (n), the warranty is complied with.

The master must use his best exertion to sail and keep with
die convoy; but if separated from it by stress of weather, the
underwriter is not discharged (o). Where a vessel, after sailing
witfi convoy, is driven back by an accident into her lading port,
she may sail again on her voyage without waiting for the next
convoy, or joining convoy from any other port(j?). And if the ^

convoy be dispersed by a storm, the master may run for his
port of discharge (gr).

Any neglect to sail or keep with the convoy, is a breach of
the warranty to sail with it. Thus, where signab from the
convoy were neglected (r), and where a ship, after getting under
weigh, waited for the master to come on board so long Uiat she
lost her place in the convoy («), it was held that the underwriters
were discharged.

Further, in order to satisfy this warranty, the master of the
insured vessel should obtain sailing orders from the officer in
command of the ccmvoy ; for unless he does so, he is not in
effect under its protection {t). And it is his duty to use every
exertion to obtain them before his ship leaves the rendezvous {u).
Where, however, the master is unable to obtain sailing orders
owing to any misfortune, as where the weather is so bad that no also immaterial to what cause the
loss was attributable ; for the warranty of seaworthiness, like
every other warranty, is a condition on the non-performance of
which the policy is void, whether the loss be occasioned by the
unseaworthiness or by any other cause (n). By seaworthiness
is meant a fit state at the time of sailing as to repairs, equip-
ment, and crew, and in all other respects, to encounter the ordi-
nary perils of the voyage insured (o).

The ship must, generally, be staunch, strong, of sound mate-
rials (p)y and of a proper construction {q) ; nor may she be loaded
with a greater cargo than she can safely carry (r) ; her anchors

rendered necessary by her being so sent v. Scougali, 4 Dow, 276.

to sea. Fawcus y. Sarj(fkld, 6 E. & B. (n) See the judgment of the Exche-

192. See also Thompton v. Hopper, 16. quer Chamber in Small y. Gihmm, mU

172. supra.

(h) Seel Park on Ins. 332—352, and (o) See per Parke, B., in DUem y.
the judgment of the Exchequer Cham- Sadler, 6 M. & W. 414. Proof of this
her in Small y. Gibson, 16 Q. B. 166. warranty is sometimes waived by an ad-
See also Gibson v. Small, 4 H. of L. C. mission on the part of the underwriter
358. This implied warranty applies that the ship is seaworthy. See ParjUt
only to the commencement of the voy- y. Thompson, 13 M. & W. 892 ; Phillips
age, but if, during the yoyage, the as- y. Naime, 4 C. B. 843 ; Lhtpont de Ne-
sured does any act yoluntarily, by which mottrs y. Fance, 19 How (American), 162.
the ship is made unseaworthy, and a (p) Douglas v, Scougall,^ Dow, 276;
loss thereby ensues, the underwriter is and see ante, p. 44.
not liable. See the judgment in Sillem (q) Watt y. Morris, I Dow, 32. In
y. Thornton, 3 E. & B. 883. this case a vessel without knees was

(i) See the judgment of Lord Redes- held to be unseaworthy for a foreign

dale in Wilkie y. Geddes, 8 Dow, 60. voyage.

(*) KniU v. Hooper, 2 H. & N. 277. (r) Weir v. Aberdein, 2 B. & A. 82a

(0 Gibson v. SmtUl and Thompson v. It might be inferred from the expres-

Hopper, ubi supra, sions used in the judgment in this case

(m) Lee v. Beach, 1 Park on Ins. that the policy is not avoided if an un-

842; Oliver v. Cooky, ib, 343 ; see also seaworthiness existinp^ at the comroence-

the judgment of Lord Eldon in Douglas ment of the voyage is remedied before

Digitized by



and cables must be sufficient («), and she must be properly
equipped with sails and other stores (0* It is not always
enough that a ship is supplied with such sails as are essential
to her safety from the perils of the sea, since in time of war she
must be able to keep up with convoy and avoid capture (u).

If a vessel be insured " at and from a port," she need not be,
while in port, in a fit condition to go to sea. The warranty is
complied with if while there she is in such a condition as to
enable her to lie in reasonable security till she is properly re-
paired, or otherwise fitted for the voyage (x). So, if the voyage
be such as to require a different complement of men or state of
equipment in difierent parts of it, as, if the voyage be down a
canal or river, and thence in the open sea, it is enough if the
vessel is, at the commencement of each stage of the navigation,
properly manned and equipped for it(y).

The ship must be provided with a master of competent skill,
acquainted with the navigation, and the ports for which she is
bound (z). In a case at Nisi Prius, in which it appeared that,
on a voyage from the Mauritius to London, the captain had
gone on board ill without taking any one with him who was
competent to take charge of the ship in the event of his illness
increasing, the jury were directed that if, in their opinion, con-
sidering the length of the voyage, and the circumstances under
which it was undertaken, the ship was not sufficiently manned,
they must find for the underwriters (c/).

any actual loas occurs. But the facts der the ship unseaworthy. Stewart y.

of this case were peculiar, and the Wilson, 12 M. & W. 11.

general rule is clearly otherwise. See (t) Wedderbum v. Bell, 1 Camp. 1 .

Forthaw ▼. Chabert, 8 B. & B. 158. And It would seem that a reasonably suffi-

eoosidering the nature of a warranty, it cient supply of medicines ought to be

is difficult to see that, even in cases of on board. See Woo{fr, Clagett, 3 Esp.

unseaworthiness resulting only firom 257.

mistake or accident, there can he any (u) See the observations of Lord

exception of this sort See also ikTZ^aiia- Ellenborough in Wedderbum v. Bell,

han V. The Universal Insurance Company, ubi supra.

1 Peters (American) Rep. 170. (x) Parmeter v. Cousins, 2 Camp. 235 ;

(f) Wilkie V. Geddes, 3 Dow, 57. Forbes v. Wilson, 1 Park on Ins. 344,

Where one of the rules of an insurance note ; Hibbert v. Martin, ib, ; Smith v.

club required that all chain cables Surridge, 4 Esp. 25 ; Annen v. Woodman,

should be tested, it was held that the 8 Taunt 299.

testinff of the cahles was not a condition (y) See the judgment in Dixon v.

precedent, but only a direction to the Sadler, 5 M. & W. 414.

committee as to what they were to point (s) Tail v. Levi, 14 East, 481 ; see

their attention to. Harrison v. Douglas, also ante, p. 45.

3 A. 8r E. 896. But where one of the (a) Clifford v. Hunter, Moo. & Malk.
rules was, that unless certain stores were 103 ; 5. C, 8 C. & P. 16. The correct-
provided the ship should not be insured, ness of this ruling has heen doubted in
It was held that the effect of a noncom- America. Mr. Chancellor Kent, in
pliaiice with this provision was to ren- noticing it, remarks, that the warranty

Digitized by



A competent and sufficiently numerous crew must be engaged
for the whole voyage (b). But this warranty does not include
an undertaking that the master or crew shall do their duty
during the voyage. Their negligence or misconduct therefore,
supposing them to have been originally competent, is no defence
to an action on the policy (c). Where the master and crew
negligently and improperly threw overboard ballast, whereby
the vessel became unseaworthy, and was lost by a peril of the
sea, it was held that the underwriters were liable, even although
the acts were not barratrous (^). When a ship on a voyage
from Cuba to Liverpool sailed with eight men for Liverpool
and two for Jamaica, and touched at Jamaica to land the two
men and procure others, it was held that she was not seaworthy
for the whole voyage when she sailed, although it was impos-
sible at Cuba to procure the proper complement of men for the
voyage (e). A mere non-compliance with the provisions of the
existing statutory enactments respecting the agreement with the
crew does not, however, constitute unseaworthiness (/). Whane
a whaler, which was insured with liberty to chase and capture
prizes, had at the time of insurance lost some of her crew by
death and casualties, so as to be unable to carry out all the
purposes of her voyage, it was ruled at Nisi Prius that she
might be deemed seaworthy if she had a competent crew to
pursue any part of her adventure and to navigate the vessel
home (g).

The vessel must also usually be provided with a pilot of
competent skill in those places where the nature of the naviga-
tion renders one necessary (A). On leaving a harbour where

of seaworthiness "would seem to imply y. Wi»e, 7 6. & C. 794 ; Share ▼. Beni-

no more than that the assured must aU^ ubi supra ; Bishop t. Pentland^ 7 B.

have a sound and well-equipped vessel & C. 219 ; Dixon v. Sadler, 5 M. & W.

with reference to the voyage, and have 405 ; S, C, 8 M. & W. 895 ; see also

a competent person as master, a com- Phillips v. Headlam, 2 B. & Ad. 380.

petent person as mate, and a competent (d) Dixon v. Sadler y ubi supra ; see

crew as seamen.'* See 8 Kent Comm. also Redman y. Wilson, 14 M. & W.

287, note (a). It must he observed, 476.

however, that, in Clifford v. Hunter, the (e) Forshaw y. Chabert, 8 B. & B.

captain was ill when he went on board, 158.

and it may be doubted, looking at the (/) Redmond y. Smith, 7 M. & O.

peculiar circumstances of the case, 457.

whether Lord Tenterden meant to lay (g) Hueks y. Thornton, Holt, 30.

down the general proposition which has (h) Law v. Hollingsworth, 7 T. R.

been sometimes attributed to him. 160. The principle on which this case

(6) Shdre y. Bentcdl, 7 B. & C. 798, is decided is correct, but as a decision

note. on the particular facts it must be con-

(c) Busk y. The Royal Exchange /n- sidered to be overruled. See the judg-

#Mraiic«C^wipa«iy,2B.& Ald.73; Walker ment in Dixon v. Sadler, 5 M. & W.

y. MaUUmdy 5 B. & Aid. 171 ; Holdsworth 415 ; see also anie, p. 177.

Digitized by



there is an establishment of pilots, the duty of procuring one
is clear (t) ; but as it is not always possible to procure one on
altering port, it is sufficient, in this case, if due diligence to
obtain one is used (A).

The warranty of seaworthiness in a voyage policy is, it will
be observed, confined to the commencement of the risk. The
risk commences at the port, when the insurance is ''at and
from" a particular port, and at the commencement of the
voyage, when the insurance is "from" a given port(Z). If the
ship is seaworthy at this time the warranty is complied with,
although she becomes otherwise immediately afterwards (m) ; for
the assured cannot know in what condition the vessel may be
after leaving port (n).

Where the voyage out and home is insured, and the contract
is an entire one, although the ship is to touch at several ports,
the warranty is complied with if she be seaworthy when she
first sails on the voyage, although she is not so on leaving the
intermediate ports (o).

Since time policies have become more common in this country Time policies.
the question has frequently arisen how far any warranty of sea-
worthiness is impUed in them, and it has been contended that
even if there be in these policies no such general warranty as
exists in voyage policies^ still that a warranty of seaworthiness at
the commencem^it of the risk, so far as lies in the power of the
assured to effect it, ought to be implied ; so that if the ship had
met with damage before, and could have been repaired by the
exercise of reasonable care and pains, and was not, the policy,
even though a time poUcy, would not attach (p).

It has now, however, been decided by the House of Lords
that in a time policy, effected upon a vessel then at sea, there is
no implied warranty that the ship is seaworthy at the time when

(1) See the judgroent of Lord Tenter- p. 342.

den in Phillips y. Headlam, 2 B. & Ad. (n) See the judgment of Lord Mans-

882. field in The Earl of March v. Pigot, 5

(k) PhilUpg ▼. Headlam, uH supra. Burr. 2802.

(0 See the judgment in Small v. Oib- (o) Berwum v. Woodbridge, 2 Doug.

soHj 16 Q. B. 156. 781 ; see ante, p. 248, as to single and

(ill) See the judgroent of Lord Eldon, double voyages,

in Watson y. Gark, 1 Dow, 386. If, (p) See the judgment in /Smo/i v. Gt6-

however, the subsequent unseaworthi- son, 16 Q. B. 160, 161, and the observa-

ness arises immediately from the act of tions of Lord St Leonards, Lord Camp-

tfae assured himself, the underwriter will bell, Maule, J. and Martin, B. in Gibson

be discharged. See the cases cited oftte, v. Small, 4 H. of L. Cases, 353.

Digitized by



the policy is intended to attach (q). It has also been held that
there is no such warranty although the policy be effected on an
outward bound ship lying in a British port at which the insuring
owner resides (r). It was also held in the same case that a
plea alleging that the assured had knowingly, wilfully and im-
properly sent the ship out to sea in an imseaworthy state, and
when she was not in a fit and proper condition safely to go to
sea, afforded no answer to the action, the declaration alleging
that the loss had been caused by perils of the sea, and the plea
containing no averment that the loss had been occasioned by
the unseaworthiness (s), A plea, however, containing the same
allegations, and further averring that the assured " wrongfully
and improperly caused and permitted the ship to be and remain
on the high seas, near to the sea shore, for a great length of
time, in the state and condition aforesaid, and without a master,
and without a proper crew to manage and navigate her on her
said voyage, during which time the ship, by reason of the
premises, was wrecked, was held to be good, since it showed
that the loss had resulted from the wrongful acts of the assured,
although the perils of the sea might be the proximate cause of
it (t). And although there is no warranty of seaworthiness the
underwriter is not responsible, even in the case of a time policy,
for the cost of repairs rendered necessary by the unseaworthy
state of the vessel, although the assured have acted without
fraud and the defects were not known to him ; for in this case
the damage does not arise from any peril insured against, but
from the vice of the subject of insurance (w).

Represent A- A representation, as the term is used in insurance law, means
**^''** a statement either verbal or in writing, made by the assured to

(q) Gibson v. Small, 4 H. of L. Cases, also HolUngworik v. Brodriek, 7 A. & E.

358. In Jenkins v. Heycock, 8 Moore's 40. It appears that the expression

P. C. C. 351, it was held that even if there '' good" which is used in these and other

were any warranty of seaworthiness in a policies in describing the ship, is a

time policy, such a warranty would not merely commendatory expression, and

continue after the commencement of that no warranty is to be implied from

the voyage, but would be satisfied by its use. See the judgment in Small v.

the ship being seaworthy at the com- Gibsont cited above,

mencementof therisk. See also Michael (r) Thompson v. Hopper, 6 E. & B.

V. Tredwin, 17 C. B. 551, the facts of 172, dissentiente Erie, J. See also

which case came within the principle of Fawcus v. Sordid, ib. 192.

Gibson v. Small, Since the decision of («) Thompson v. Hopper, ubi supra,

the cases above cited, it may be taken dissentiente Erie, J.

that a warranty of seaworthiness is in (t) Thompson v. Hopper, ubi supra.

no case implied in a time policy. See (u) Fawcus v. Sordid, 6 E.& B. 192.

Digitized by



the underwriter of some circumstance connected with the pro-
posed risky and which statement is either not embodied in the
written contract of insurance at all, or, if inserted in it, is not
intended to be of its essence, and consequently need not be
literally and strictly complied with (a;). Representations differ How they
from warranties, inasmuch as the latter are, as we have seen, ^*^^°e™
integral parts of the contract; they are not, like representations,
collateral to it, but amount to conditions which must be strictly
complied with, and on the non-performance of which the con-
tract is void (y).

Representations either amount to direct assertions by the DiflTerent kinds
assured as to the past, present, or future existence of particular Son!'^'^^"^"
&cts, or to statements by him of his mere information, expecta-
tion, or belief as to such facts.

Representations, to be binding, must also be made when the
policy is eflFected (2r), or during the negotiation for it (a).

Representations are admissible to add to or to explain the Whenadmis-
policy, but not to contradict it Thus, where the policy reserved "ence? ^^'
leave to " touch at" the Cape de Verd Islands, a letter showing
that the intention was to permit the ship to take in salt there,
and which had been communicated to the underwriters, was
admitted (b). On the other hand, in an action on a policy ** at and
from London to Berbice," it was held that it could not be shown
that the risk was to commence at sea, although a letter was
produced by the broker to the underwriter when the poUcy was
effected, by which it appeared that the ship was out of the
course from London to Berbice, and the words " at sea" were
thereupon inserted in another part of the policy (c). A repre-
sentation cannot, however, be objected to because it supersedes
an usage or an implied warranty {d).

(jr) See Pawton ▼. Watson, 2 Cowp. W. Bl. 463; Thompson v. Buchanan, 4

785, and the cases cited below. The Brown, P. C. 484.

following is an instance of a statement (y) ^ft/e,p. 333.

which, although occurring in the policy, («) Dawson v. Atty, 7 East, 367.

was held from its nature to amount only (a) Edward v. Footner^ 1 Camp. 530.

to a representation. Where the policy (b) Urquhart v. Barnard, 1 Taunt,

contained the words ** to return lOL per 450.

cent, for convoy and arrival,'* they were (c) Redman v. London, 3 Camp. 503 ;

held to be only a representation, and S. C, 5 Taunt 462.

tujt a warranty that the ship would sail (d) Duer or Ins., Lect. 14, sects. 17

with convoy. Reid v. Harvey, 4 Dow, and 18.
97 ; see also Hodgson v. Richardson, 1

Digitized by




Effect of on

A representation to the firet underwriter is considered as re-
peated to all subsequent underwriters, since the latter are sup-
posed to rely to some extent upon the skill and discretion of the
first (e).

So, if the first signature is fraudulent, and merely colourable
in order to induce others to underwrite, the policy is avoided (/).
This rule is, however, strictly confined to representations made
to the first underwriter. Representations made to intermediate
underwriters are not considered to be made to those who
follow (^); nor does the rule apply to the underwriters of a
separate policy (A).

Effect of fraud. Where there is actual or moral tnxxd in a material represen-
tation the contract is avoided upon the general principles
applicable to ordinary contracts. But the contract of insurance

Online LibraryCharles Edward Pollock Frederic Philip MaudeCompendium of the law of merchant shipping → online text (page 43 of 101)