meeting by agreement a British vessel, for the purpose of receiving gunpowder and arms, is illegal, even though the latter should have had a license to export them for the purposes of trade (a). SECTION III. OF NON-COMPLIANCE WITH WARRANTIES. WE come now to notice another important instance in which the assured may forfeit the insurance which he has made to secure himself against the perils insured against by the underwriters, and this is where he makes an express condi tion or warranty of some fact or circumstance, or binds himself, that a certain condition shall happen, otherwise he is to lose the benefit of his contract. This condition by which the assured binds himself that it shall be performed, is independent altogether of the contract which I endeavoured in the first part of this Treatise to explain the principles of; and it was there said, that there was an implied condition by law, that the assured could not escape from, viz., that his ship should be seaworthy and properly equipped for the voyage; but having done that, he makes no assurance that his ship is safe at the moment of the insurance (b); he is bound to give the underwriter all the account he knows of her, but, as Lord Mansfield says, " that although the assured ought to know whether the ship was seaworthy when she set out on her voyage, yet he may not be able to know the condition she may be in, after she has been out a twelvemonth." There is also an implied condition by law, that the loss shall not happen through the fault of the assured; if his conduct is such as to cause either a forfeiture of the ship to (a) Gibson v. Mair, 1 Marsh. 39, and Gibson v. Service, 1 Marsh. 119. (b) See Motteux v. London Assurance Comp., ante, p. 200. a foreign state, or to occasion the loss of it by his own act, the underwriter is not liable. But it is a very different thing where he chooses to bind himself to a condition or warranty, that something is the fact, as he represents, or that something is to be done by him. By the law of England, such a condition must be complied with, or it works the entire failure of the contract. Lord Eldon, in the case of the Newcastle Fire Insurance Company v. Macmorrow (a), says :-" It is a clear and first principle of the law of insurance, that where a thing is warranted to be of a particular nature, or description, it must be such as it is stated to be. It is no matter whether it be material or not; the only question is, 'is this the thing de facto that I have signed."" And therefore it has been held in the case of Harrison v. Douglass (b), that an underwriter in an action on a policy, after paying money into Court, cannot rely on a breach of warranty for the payment admits that the assured has a right to recover something, which he could not do if there. had been a breach of warranty. So in the case of Blackhurst v. Cockell (c), which was an action on a policy of insurance "on goods," from the lading of them on board the ship at London to Liverpool, “lost or not lost:" at the bottom of the policy was added, warranted well, December, 9th, 1784." At the trial before Lord Kenyon, at Guildhall, it appeared that the underwriter underwrote the policy between one and three in the afternoon, and that the ship was lost about eight o'clock that morning. A nonsuit was entered, with liberty to the plaintiff to move to enter the verdict for him: Lord Kenyon, "The single question is, whether the warranty at the bottom of the policy means at the time when the defendant subscribed it, or any time that day? And we are all of opinion, that if the ship be well at any time that day it is sufficient." Buller, J.-" The nature of a warranty goes a great way to determine this question. It is a matter of indifference (a) 3 Dow. 255. (b) 3 A. & E. 306. (c) 3 T. R. 360. whether the thing warranted be material or not; but it must be literally complied with; and if it be so, that is sufficient. Here the ship was warranted safe on the 9th of December, and there was great reason for inserting those words, because they protected the underwriter from all losses before that day; to which he would have been liable, for the policy was on the goods from the lading on board of the ship." Distinction 2. In Pawson v. Watson, (a) Lord Mansfield said.—“There between a waris no distinction better known to those who are at all conranty and a representation, versant with the law of insurance than that which exists In order to make written instructions binding as a must appear on the face of the policy. between a warranty, or condition which makes part of a written policy, and a representation of the state of the case. Where it is a part of a written instrument it must be performed." And in the same case, in answer to a question put by the counsel for the underwriters, viz., whether it was the opinion of the Court that to make written instructions valid and warranty, they binding as a warranty, they must be inserted in the policy? Lord Mansfield answered that, "most undoubtedly that was the opinion of the Court." And in the case of Lothian v. Henderson in the House of Lords. (b) Mr. J. Chambre, says (c) "At the time when the agreement was made, the underwriters had by the terms of the policy a clear right to all the advantages of a warranty that the ship was American, it having been long settled that such a description as is contained in this policy does amount to a warranty." The description in the policy was " upon the goods and merchandises of and in the good ship called the Catherine, an American vessel." And Mr. J. Le Blanc, says, "it has scarcely been denied at the Bar that the terms of this policy, "of and in the good ship or vessel called the Catherine, an American vessel," amount to an express warranty of the ship's being American, which was a neutral nation, in the war, nor could it have been otherwise contended for, after the uniform (a) Cowp. 787. See ante, p. 602, where this case is fully reported. (b) 3 B. & P. 499. current of authorities in which such an averment has been decided, or taken for granted to be a warranty, as much as if the word 'warranted' had been inserted in the policy, for I take this to be an established proposition that every positive averment or allegation on the face of the instrument, and making a part of the written contract, whether inserted in the body of it, or written in the margin in a line with the body of the instrument, or transversely, amounts to a warranty or condition. And if such allegation be not strictly true the assured cannot recover on the policy to whatever cause the loss be owing, whether the loss be connected with the subject of such warranty, or wholly independent of it: for it is a condition on which the contract is to take effect, which failing, the contract fails." A warranty on the margin of a policy must be strictly followed, as much as if it the body of the was written on instrument. 46 Thirty seamen besides passengers," persons be ship's com And this rule of law was decided in the case of Bean v. Stupart (a), where the plaintiff insured the ship called the Martha "at and from London to New York," and on the margin of the policy were written these words "eighty ninepounders with close quarters, six-pounders on her upper decks, thirty seamen besides passengers." The ship sailed from the Downs on the 1st March and on the 10th was taken by an American privateer and was sent to make the port of means thirty Boston. On the 30th May, the plaintiff brought this action longing to the against the defendant, on which the defendant paid the pre- pany, includmium into Court, and pleaded the general issue. The cause ing cook, was tried before Lord Mansfield, and a special jury at &c. Guildhall, at the Sittings after Trinity Term, 18 Geo. 3; the defence set up was, that there were not thirty seamen on board the ship according to the stipulation in the margin of the policy: and, in fact, it appeared from the evidence that to make up that number the plaintiff reckoned the steward, cook, surgeon, some boys and apprentices, and some persons learning to be seamen; and only twenty-six persons had signed the ship's articles. It also appeared that there were seven or eight passengers on board. (a) Doug. 11. surgeon, boys, Lord Mansfield observed, in summing up to the jury, that the import of the words must be collected from the subject to which they are applied. That if, in the present case, the assured had stipulated for thirty seamen besides boys and landsmen, it would have been clear that the terms had not been complied with; but that in this policy seamen were contrasted with passengers, and, in that sense, the words seemed to include boys as well as men: but he left the construction to the jury. The jury found a verdict for the plaintiff as for a total loss; the defendant obtained a rule to shew cause why there should not be a new trial. On the day for shewing cause, Lord Mansfield, after reporting the facts as above stated, and that he had left the construction of the word "seamen," to the jury, observed, that he thought there was little doubt on the question after what had passed in the case of Pawson v. Ewer. That the warranty might have been so worded as only to include able seamen; but that, as expressed here, the contrast being with passengers, the whole of the ship's crew or ship's company appeared to be meant. That was the general maritime sense of the word. After argument at the Bar: Lord Mansfield—“ The whole argument for the defendant turns upon begging the question. There is no doubt, but that this is a warranty. Its being written on the margin makes no difference. Being a warranty there is no doubt but the underwriter would not be liable, if it were not complied with: because it is a condition on which the contract is founded. But the question is, whether in this warranty the word "seamen" was used in the strict literal sense or not. If it was, the warranty has not been complied with. It is a matter of construction. Boys are reckoned seamen, not only at the Custom-house, and Greenwich hospital, but in the distribution of prizes. The special jury and byestanders were perfectly clear, they hardly seemed to think it a serious question in this cause. There is scarcely now such a thing as a ship entirely manned with seamen strictly so called. Even on board the king's ships they are satisfied with a few strict seamen, and able-bodied |