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Where by the neglect of the ship insured

she failed to sail with con

voy, the under

writers were discharged.

The warranty

is to be construed with reference to the usage of trade and the orders of government.

Ship insured "at and from

Cadiz to Amsterdam warranted to sail

policy of insurance tried before Lord Mansfield, the plaintiff was nonsuited, there being a warranty to depart with convoy: and it appearing from the evidence, that the commodore of the convoy had made signals for sailing from Spithead to St. Helen's the night before, and had made repeated signals the next morning from seven o'clock till twelve, notwithstanding which, the ship insured had neglected to sail with him and did not sail till two hours after, in consequence of which she was taken by a privateer.

Although we have thus seen, that a ship must not voluntarily depart from convoy during the voyage, yet this species of warranty must always be construed with reference to the usage of trade, and to the orders of government. For if the course upon a particular voyage has been to have a relay of convoy, protecting the trade from one port to another; or if government appoint a convoy to escort the trade of a place to a given latitude and no farther; and there be no other convoy on that station, a vessel, taking the advantage of such a convoy, has complied with the warranty to sail with convoy for the voyage.

Thus in the case of Smith v. Readshaw (a), which was an insurance on the ship William, "at and from London to Jamaica," warranted to depart with convoy for the voyage, Lord Mansfield, in the course of his summing up to the jury, said,-" A warranty to sail with convoy means with such a convoy as government pleases to appoint; and whether it consists of separate ships at different stations or not, it is a convoy for the voyage; therefore on that point there is no doubt.

The same doctrine was held by Lord Kenyon, in De Garey v. Claggett (b), which was an action on a policy of insurance at and from Cadiz to Amsterdam, warranted to sail with with convoy for for convoy for the voyage. The ships insured had sailed from Cadiz under a British convoy; and were lost before they

the voyage."

The ships

(a) London Sittings after Easter, 1781. Park Ins. 708.

(b) London Sittings after Mich. 1795. Park Ins. 708.

convoy

The

reached the Downs, where it was alleged they were to have
taken a fresh convoy for Amsterdam. The underwriters in-
sisted that the convoy should have been direct to Amsterdam.
The assured, on the other hand, contended, that all
must be according to usage, and that in many voyages there
is no such thing as a direct convoy, but that the vessels
proceeds by relays of convoy from stage to stage.
special jury, with Lord Kenyon's approbation, gave a verdict
for the plaintiffs. And although in that case, it is true, the
underwriter had adjusted the policy with full knowledge of
all the circumstances, which his Lordship seemed to think
conclusive, yet there were other causes on the same policy,
where there was no adjustment; and upon Lord Kenyon and
the jury declaring that, without considering the adjustment,
they thought the warranty had been complied with, the
plaintiff had a verdict, and no motion was ever made for a
new trial in any of these causes.

of

A

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from London to St. Sebastian, sail with

was insured

"warranted to

con

voy," and the captain of the convoy ship

had orders to

go no further

than a certain

point with the

St. Sebastian ships, and went

So also the Court of Common Pleas decided in D'Eguino Where a ship v. Bewicke (a), which was an action on a policy on the ship Little Betsey, at and from London to St. Sebastian, warranted to sail with convoy. The ship sailed with other vessels under convoy of several ships of war: and after a certain latitude, the Weazel, one of the men-of-war, was detached to convoy the Spanish ships: but the captain that ship had orders to go with the St. Sebastian ships no further than Bilboa, and in fact he went no farther. verdict passed for the plaintiff. When the case came on no further, the before the Court on a motion for a new trial, it was argued for the underwriters, that warranties are to be strictly complied with; and that however near the port of St. Sebastian might be to Bilboa, yet the principle was the same; and that a convoy to the latter place could no more be construed to be a convoy to the former, than a convoy to the Cape of Good Hope could be a convoy to the East Indies, and for this was cited Hibbert v. Pigou. (b)

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underwriter was held liable.

Mr. Justice Buller.-"The case of Hibbert v. Pigou is not applicable to this, for there a convoy was appointed and actually sailed from Jamaica to England; as to the instance put at the Bar of a convoy to the Cape of Good Hope, I entirely differ from the counsel on that point; for if government thought a convoy to the Cape was a sufficient protection to the East India trade, and the usage were for the East India ships to sail with a convoy only to the Cape, and to consider that as the East India convoy, and no other convoy was appointed to the East Indies, I should hold that the warranty was complied with; though I agree, if there was another convoy to the East Indies, it would be otherwise. The captain of a merchant-ship has nothing to do with, nor can he know the instructions from the Admiralty to the King's officers, but must take such convoy as he finds. I am, therefore, of opinion that there is no ground for this motion." Rule refused.

3. Warranty III. The third and last species of warranty which is now that the ship or to claim our attention, is that of neutrality. This differs goods are neutral property. from the two preceding ones in this respect, that inasmuch as in the former the policy was only avoided by the breach, but in this case if the warranty is not complied with, the policy is void in the commencement, on account of fraud. We saw in a former part of this section, that the Judges, in the case of Lothian v. Henderson (a), had no doubt that when the description in the policy in that case was " on the good ship called the Catharine," an " American vessel," that this was an express warranty that she was an American, which was a neutral nation in the war.

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Policy on goods war Fanted neutral ship and property." The ship and goods were lost by bad weather, but the ship

Thus in Woolmer v. Muilman (b), on a special case reserved for the opinion of the Court, it appeared that an action was brought for the recovery of a total loss on a policy of insurance made on goods, on board the ship Bona Fortuna, at and from North Bergen to any ports or places whatsoever, at the time she until her safe arrival in London, "warranted neutral ship and

(a) 3 B. & P. 499, ante, p. 664. (b) 4 Burr. 1419; 1 Black. 427.

property." The ship, with the goods so being on board her, after her departure from North Bergen, and before her arrival at London, proceeding on her voyage, was, by force of the winds and stormy weather, wrecked, cast away, and sunk in the seas, and the said goods were thereby wholly lost. The ship called La Bona Fortuna, at and before the time she was lost, was not neutral property, as warranted by the said policy. The question was, whether under such circumstances the plaintiff could recover? Lord Mansfield, after hearing counsel for the plaintiff, stopped those for the defendant, saying, the point was too clear to be argued. There was a falsehood with respect to the thing insured, for he insured neutral property when it was not so, therefore there is no contract. We must give judgment for the defendant.

And in the case of Tabbs v. Bendleback (a) it was held, that an American by birth, who has resided for some years with his family in England, though himself has been occasionally in America, is so far to be considered as a British subject, that if a ship of his be warranted American property it is not to be deemed so, though the vessel was built in America and registered there, and such a plaintiff in an action upon a policy of insurance was nonsuited.

The plaintiffs in the case of Eden and another v. Parkinson (b), insured the ship the Yonge Herman Hiddinga, and her cargo, "at and from L'Orient to Rotterdam, warranted a neutral ship and neutral property." The ship being captured in the course of her voyage by some English men-of-war, the plaintiffs brought this action against the defendant, one of the underwriters on the policy, stating in their declaration, that the defendant subscribed the policy on the 28th of November, 1780, and averring that the ship and cargo were at that time neutral property. The trial came on before Lord Mansfield at Guildhall, when a verdict was found for the plaintiffs, subject to the opinion of the Court upon a case stating, that

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the ship in question sailed from L'Orient, on the voyage insured, on the 11th of December, 1780, having the insured cargo on board, and both the ship and cargo were neutral property at the time of the ship's departure from L'Orient, and so continued until the 20th of December, 1780, on which day hostilities having commenced between the English and the Dutch, the Dutch ceased to be a neutral power, and the ship and cargo ceased to be neutral property. They were taken on the 25th of December, 1780, and condemned as lawful prize, in the Admiralty Court, on the 19th of Febru ary, 1781.

Lord Mansfield.-" Many points have been gone into in the argument on both sides at the Bar, which are not neces sary for the decision of this case. For instance, there is no doubt but you may warrant a future event. But the single question here is, what is the meaning of this policy? I had not a particle of doubt at the trial, and I know the jury had none; but Mr. Lee pressed for a case, and I granted one out of respect to him. What is the case? It is an insurance upon a ship and her cargo, at and from L'Orient to Rotter dam. The insured warrant them neutral, and the defendant would have the Court to add, by construction, and so shall continue during the whole voyage.' The contract is not so. The insured tell the state of the ship and goods then, and the insurers take upon themselves all future events and risks, from men-of-war, enemies, detention of princes, &c. The parties themselves could not have changed the nature of the property; but they did not mean to run the risk of the war. If it made a difference what country the property belonged to, the underwriters should have inquired. The risk of future war is taken by the underwriter of every policy. By an implied warranty every ship must be tight, staunch, and strong; but it is sufficient if she shall be so at the time of her sailing. She may cease to be so in twenty-four hours after her departure, and yet the underwriter will continue liable. The case of Lilly v. Ewer (a) turns quite the other way. The decision (a) l'ide ante, p. 698.

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