ranties gene period antecedent to the risk insured, it should be construed Of express waras a representation, and not as a warranty, and would rally-their therefore be satisfied by a substantial compliance: but the form, construccourt unanimously held that it was an express warranty; of fulfilment. that it had been broken by the ship sailing from Liverpool with only forty-six men, and therefore that the policy was void in toto." (q) or It has been made a question in the United States whether an express warranty is in all cases a condition precedent, so that its breach will always avoid the policy ab initio ; whether it has this effect only when it relates to the commencement of the risk. (r) tion, and mode The literal fulexpress warranty is in all filment of an cases a condi tion precedent to the right of the assured to recover on the policy that con Mr. Phillips inclines to the latter opinion, and thinks that where the warranty relates to a circumstance necessarily tains it. subsequent to the commencement of the risk, as that the ship shall take on board a certain armament at an intermediate port, the assured would be entitled to recover for an antecedent loss, though the warranty should not be complied with. (s) It appears to me, however, although the point has never presented itself for direct adjudication in the English courts, that this opinion is inconsistent with the spirit of the English decisions: it seems quite clear that the parties might, if they pleased, expressly stipulate that the contract between them should be void in toto, as well upon the non-performance of some promised act, as upon the non-existence of some alleged event; and the only question is whether in expressly inserting into the policy an executory stipulation, they have or have not done it with the intent that the efficacy of the contract, and consequently the liability of the underwriter, shall entirely depend on the stipulation being exactly complied with. It seems to me that they must be taken to have done so, and therefore, that the subsequent breach of a warranty, promising that a given thing shall take place, as completely avoids the (9) De Hahn v. Hartley, 1 T. Rep. 343. (r) Hendricks v. Comm. Ins. Comp., 8 Johns. 1. † Taylor v. Lowell, 3 Mass. Rep. 337. 340. 347. See 1 Of express war ranties generally their form, construction, and mode of fulfilment. Nothing will excuse non compliance with an express direct and irre sistible opera tion of a peril insured against. If, however, the state of things contemplated by the warranty policy ab initio, as the cotemporaneous falsehood of a warranty affirming that a given thing does exist or has existed. No cause, however sufficient; no motive, however good; no necessity, however irresistible, will excuse non-compliance with an express warranty: if it be not in fact complied with, though for the best reasons, the policy is void. Even the direct and irresistible operation of a peril expressly insured against in the policy is no excuse for noncompliance: thus, where a ship warranted to sail on a given day was prevented from doing so by an embargo laid on by a British governor, this breach of the express warranty was held to avoid the policy, although such embargo came expressly within the words "restraints and detainments of kings, princes, and people," &c., which were perils expressly insured against in the policy. (t) The only conceivable cases in which compliance with an express warranty might be excused would be, -1. If the state of things contemplated by the warranty were to cease; should cease, or or, 2. If a subsequent law should pass rendering compliance law should pass with a previous warranty illegal. a subsequent rendering com pliance with a previous warranty illegal, the assured would be excused from its fulfilment. Thus, if, before peace was declared, a warranty were inserted that a ship should sail with convoy at some future time, from some foreign station, the intervention of peace before the period at which the ship was so to sail would doubtless be held to excuse the necessity of a compliance with this warranty, for it would be only fair to presume that the parties, when they inserted such a condition into the policy contemplated the continuance of that state of things which alone led to its insertion, and can therefore no longer be entitled to insist on an exact compliance when that state of things has ceased to exist. The principle here is cessante ratione, cessat lex.(u) It is an old principle of law, that if a man covenants to do (t) Hore v. Whitmore, Cowp. 784. The case of Havelock v. Hancill, 3 T. Rep. 277., which, at first sight, may scem inconsistent with this position, is not so. (u) See Duer on Representations, pp. 89, 90. 585 ranties gene tion, and mode of fulfilment. a thing which is lawful at the time, but an act of parliament Of express warcomes in and hinders him from doing it, the covenant is rally—their repealed (v); the same rule extends to warranties; and it form, construcmay be stated generally, that compliance with a warranty will be dispensed with, if it be rendered unlawful by a law enacted since the time of making the policy. If, however, a compliance with the warranty was unlawful at the time of making the policy, the contract will be void on the ground of the illegality. § 215. A warranty, like every other part of the contract, is to be construed, as to the terms it employs, according to the understanding of merchants, and does not bind the assured beyond the commercial import of the words. A warranty was inserted on the margin of a policy, that the ship insured should carry "thirty SEAMEN, besides passengers ;" in point of fact, it appeared that only twenty-six mariners had signed the ship's register, and to make up the number, thirty, the plaintiff reckoned the steward, cook, surgeon, some boys, &c.: evidence being given that boys are included under the term seamen, by mercantile usage, and the jury being of opinion that the word seamen in this policy meant persons employed in navigation, as distinct from passengers, the court held the warranty sufficiently complied with. (w) Although, on the one hand, the literal fulfilment of a warranty is strictly required, yet, on the other, it is no less certain, that nothing beyond a bare and literal fulfilment can be required; a warranty will not be extended, by construction, to include anything not necessarily implied in its terms. Thus, where there was a warranty "that the ship should have twenty guns," and it appeared that, although, in fact, the ship had twenty guns, yet she had only twenty-five men, a number quite short of the necessary complement for twenty guns, Lord Mansfield held that this warranty did not (v) Brewster v. Kitchin, 1 Ld. Raym. 321. S. C. reported as Brewster v. Kitchell, 1 Salk. 198. (w) Bean v. Stupart, Dougl. 11. Construction of language of an express war the terms or ranty is governed by mercan tile usage. Bean v. Stu part, Dougl. 11. A warranty cannot be ex ferrible from Of express war. ranties generally-their imply that she should carry a competent number of men to work the guns; and therefore, as there was no ground to tion, and mode impute fraud, that the warranty had been sufficiently com form, construc of fulfilment. plied with.(x) Warranty of ship's safety at a particular time and place, and other occa sional warran ties. Construction of warranty that ship is "well" SECT. II. Warranty of Ship's Safety at a particular Time and Place, and other occasional Warranties. 216. In order to protect himself from liability to any loss before a given day, the underwriter frequently causes a warranty to be inserted in the policy that the ship was "all safe," or "well," on the day. The following case will sufficiently show the operation of this warranty. Goods were insured "lost, or not lost," and at the foot of the policy was written "warranted well December 9th, on a given day, 1784;" it appeared that the policy was subscribed by the defendant between one and three o'clock in the afternoon of the &c. The word "well" in such solely to the state of the ship on the day of signing the policy. Blackhurst v. Cockell, warranty refers day named in the warranty, and that the ship had been lost at eight o'clock the same morning. Lord Kenyon said: "The single question is, whether the warranty at the bottom of the policy means warranted well at the time when the defendant subscribed it, or at any time on that day; and we are all of 3 T. Rep. 360. opinion, that if the ship were well at any time on that day, it is sufficient, and that the defendant is consequently liable.” (y) From the same motive, a warranty that the ship was "in port" on a given day is also of frequent occurrence, and is construed in the same way: thus where the following words were written transversely on the margin of a policy, "in port 20th July, 1776," Lord Mansfield held that this was clearly a warranty that the ship should be in port on that day, and therefore, as it was proved that the ship had sailed on the 18th of July, he held the policy void. (z) Kenyon v. (x) Hyde v. Bruce, S Dougl. 213. Marsh. on Ins. 354. (y) Blackhurst v. Cockell, 3 T. Rep. (z) Kenyon v. Berthon, Dougl. 12. note. Warranty of time and place, and other occa Where a policy was effected on a ship against fire for one month, on the terms that she should be "safe moored in Portsmouth harbour" during the time, Lord Ellenborough held, that this policy was not avoided by the ship's being sional warranmoved from one part of the harbour to another for the more convenient purpose of repairs, and taking in her cargo, she having been safely moored at every part of the harbour she was so moved to. (a) ties. In a time policy, where the terminus a quo is not men- In a time potioned, but the insurance is intended to cover the ship on But any voyage during the time, this warranty will be satisfied draw The limit of the port of London for ships clearing outwards is at Gravesend, where the cockets and clearing notes are delivered, and where alone the exporter can obtain back he may be entitled to (c); if, therefore, goods should be warranted as having been, or to be exported from London any So decided on a license to exWilliams v. Marshall, 6 Taunt. 390. 2 Marshall's Rep. 292. See also Park on Ins. 692, 693. 8th ed. licy this warranty will be satisfied by the ship's being at any port on the day; but in voyage policies the meaning of the ship was a warranty that "in port" on a given day, means that she was then within the limits of that port, where Construction of goods should be "exported" from London warranty that by a given day: limits of the port of London for ships clear. ing outwards. |