policy would be void, and the underwriters not liable. I confess that I was a little surprised at that proposition, because, if true in point of law, I fear we should find many cases indeed where it would turn out that the assured could have no claim upon the underwriter, because something was wanting, or something excessive, at the instant of the ship's departure, although the want had been supplied, or the excess removed before the loss happened. Suppose, for instance, a vessel is unseaworthy, unless she has two anchors, being destined for a long voyage, and she sails from London to Gravesend with only one, shall it be said that if no loss happens between London and Gravesend, and the vessel at Gravesend takes in her second anchor, and then proceeds on her voyage, that the underwriters are not liable for a subsequent loss, and that the policy is so completely at an end that, even if the underwriters agree to waive the objection, and to allow her to proceed on her voyage, their consent shall be unavailing? These inconveniences, which would be continually occurring in practice, would lead to dangerous consequences, by opening a door to underwriters to break their engagements by means of trivial circumstances, the effect of which no one ever contemplated. I think, therefore, that that proposition cannot be maintained. With respect to the sufficiency of the communication made to the underwriters, it is quite clear that the underwriters were told all that was in substance necessary for them to know; for they were told that the vessel, when she sailed, had too large a cargo on board, and that she was not in a situation fit to perform her voyage. Upon the whole, therefore, I think this rule must be refused." The rest of the Court concurred.

That the implied warranty of the seaworthiness of a ship has a reference only to her condition at the commencement of the risk, and does not extend to any other period of the voyage (except in those instances where something is to be done, as the taking on board of a pilot in the usual course of the navigation), there can be no doubt. But some question may arise whether the assured, in case the ship becomes un

K

To a declaration by an as

sured on a time policy alleging

a loss by the perils of the seas, the de

fendant plead .ed that, "during the time

for which the ship was insured and

before the loss she was da.

maged and un

seaworthy in the course of the voyage, and the fact comes to his knowledge, and she can by reasonable care and diligence be rendered seaworthy, is not in such a case bound to repair her, and whether, in his failing to do that, and a loss arises in consequence, the underwriters would not be discharged from their liability. It appears, however, very clear that the fact must come to the knowledge of the assured, for the implied warranty extends only to the commencement of the voyage, when the assured is bound to know whether the ship is seaworthy or not. This question came before the Court of King's Bench, in a recent case of Hollingsworth v. Brodrick (a). But, inasmuch as the Court held that the plea was itself defective, they found it unnecessary to pronounce any direct decision upon the principal question in the case. As, however, the leaning of the minds of the Judges present may be gathered from what fell from them on the occasion, I shall briefly refer to the case in question.

It was an action on a time policy for twelve calendar months upon any kind of goods and merchandises, and also upon the body, &c. of the ship Augustine. The declaration stated that "during the said twelve calendar months, and whilst the said ship was attempting to prosecute a voyage which was protected by the said policy, to wit on, &c., the said ship was by the perils and dangers of the sea, and by stormy and tempestuous weather, and the violence of the winds and waves broken, damaged, spoiled, and destroyed, and the said ship thereby became and was wholly lost to the plaintiff." Plea. That after the making of the said policy in the said declaration mentioned, and during the said time the said ship or vessel was insured as therein mentioned, and before the loss as in the declaration mentioned, the said ship or vessel was by the plaintiff greatly broken, damaged, shattered, loosened and unseaworthy; but the same by and with reasonable care and diligence in that behalf, and at and for a very small cost and sum as compared with the value of the said ship or vessel, might and render her and could and ought to have been by the said plaintiff reseaworthy but

seaworthy, but by reasonable

care and small

cost compared with her value,

ought to have been repaired

and rendered

seaworthy, yet the plaintiff well knowing the premises, did not repair

(u) 7 A. & E. 40.

and she re

mained in such state till the unseaworthy loss. Held.

paired, amended, and rendered seaworthy: yet the said neglected, &c., plaintiff, well knowing the premises, did not nor would repair, amend and render the said ship seaworthy, but wholly neglected and refused so to do; and she so remained and continued in such unseaworthy state and condition until the time of the loss in the said declaration mentioned." To this plea the

defendant demurred.

that at all

events the plea did not suffi

was bad, as it

ciently aver knowledge by

the ship was

been repaired before the loss,

and might have

or that the loss

was occasioned by the non-re. pair. And quere, whether

this would have

been a good averment had been properly

defence if the

made?

Lord Denman, C. J.-"The defence of unseaworthiness the assured that is generally applied to the time when the risk commences; unseaworthy that is not done here, nor is the loss stated to have happened in consequence of the unseaworthiness supervening. I own I feel a doubt, whether, if it were distinctly averred that the ship had by gross negligence been brought, during the voyage, to a condition in which she would not be insurable that would not be a defence. It is certainly a new, and perhaps a dangerous one; but I think that, if it were clearly made out, the assured could not say that the loss was by perils insured against. The case, however, is not such here. In the first place it is not distinctly averred that the plaintiff knew the precise danger, for the words "knowing the premises" do not amount to such an averment. And secondly, it is not said that, except for gross negligence the ship might have been restored to a seaworthy state before the loss actually happened. The averment that with "reasonable care" the ship might have been repaired and rendered seaworthy, does not show there was gross negligence in not doing so. Therefore, even supposing the law to be as I at first suggested (which I have some doubts of, from the novelty and dangerous nature of the defence), it cannot apply here; and the plaintiff is entitled to judgment."

Patteson, J.-"The defence is put entirely on the fact that the ship, during the voyage, " was unseaworthy." It is not stated that she became so through neglect, to repair from time to time, and that that occasioned the loss. I do not know that that would have been a defence. But it is only said that by some means the ship was greatly damaged. It is clear that the implied warranty of seaworthiness is satisfied if

There is an im

plied warranty on the part of the assured that

a loss shall not happen through his own default.

the ship be seaworthy at the commencement of the risk. I do not know of any distinction on account of the risk being for time. Unseaworthiness, for want of a particular description of crew is an exception to the rule, because one crew may be necessary for one part of the voyage, and another for another. That case is different from the case of unseaworthiness owing to something in the condition of the vessel. Even if it could be contended that a default of the owner, after the commencement of the voyage, might be set up in the manner here attempted, I should say that the loss ought to be traced to that, because the defence is no longer rested on the implied warranty, but is something actually done by the owner. Here the endeavour is to make the implied warranty extend to every period of the voyage where the owner could do anything for the ship, making him responsible, even though the loss be not caused by his omitting any of these things. There is no authority for such a position. The plea is loosely drawn, even according to the defendant's view of the case. It should have stated that the plaintiff was aware of the unseaworthiness, and that there was time for repairing before the loss happened: and, supposing that in the case of a time policy, the assured was held to a warranty of seaworthiness, at the commencement of each voyage during the time, the allegations should have been shaped accordingly. But I wish to go upon the broad ground, that no warranty of seaworthiness is to be implied, except at the commencement of the voyage."

There is, indeed, an implied warranty on the part of the assured that a loss shall not occur through his own default, and therefore it was held in the case of Pipon v. Cope (a), that, when through the negligence of the owner of a ship insured, the mariners barratrously carried smuggled goods on board, whereby the ship was seized as forfeited, the underwriters were not liable for the loss. Lord Ellenborough there says, "this is a clear case of crassa negligentia on the part of the assured. It was the plaintiff's duty to have prevented (a) 1 Camp. 434.

these repeated acts of smuggling by the crew. By his neglecting to do so, and allowing the risk to be so monstrously enhanced, the underwriters are discharged." And the learned reporter of this case adds, "The supineness of the plaintiff in this case may be considered as a breach of an implied warranty on the part of the assured to use reasonable care and diligence to guard against all the risks covered by the policy (a)." And in an after-part of this work we shall see that if the assured navigates against the laws of the country in which he happens to be, he shall not recover for any loss arising out of such misconduct, for this is a gross fraud on the part of the owner of the property insured, and no man shall take advantage of his own wrong (b).

And in the case of Boyd v. Dubois (c), which was an action on a policy on some hemp, and the loss was alleged to be "by fire," Lord Ellenborough said, "If the hemp was put on board in a state liable to effervesce, and it did effervesce, and generate the fire, upon the common principles of insurance the assured cannot recover for a loss which he has himself occasioned. But I must positively say that they were not bound to represent to the underwriters the state of the goods, it would introduce endless confusion and perpetual controversies if such a duty was to be imposed upon the assured."

sary for the

assured to make tion of the condition of

a representa

the ship.

In as much, as the implied warranty of the seaworthiness of It is not necesthe ship is an essential ingredient in the contract entered into between the assured and the underwriter, it would, consequently, be irrelevant to the contract to make any representation of the condition of the ship, because that is entirely dispensed with by the underwriter, he having his remedy in his own hands. In a case of Shoolbred v. Nutt, (d) which was an action on a valued policy of insurance upon the ship Two Sisters, and a cargo of wheat and wines from Madeira to Charlestown; the ship had sailed from London

(a) See Law v. Hollingsworth, 7

T. R. 160, ante, p. 45.

(b) See 2 Vern, 176, post.

(c) 3 Camp. 132.

(d) Sit. at Guild. after Hil. 1782. Park Ins. 493.