to the convoy; nor with a convoy appointed for another voyage, though it may be bound upon the same course for the greater part of the way.2

It is generally necessary to obtain sailing orders, because without them the captain cannot answer signals, or know the place of rendezvous in case of a storm, and he does not in effect put himself under the protection of the convoy. But the obtaining of the orders does not seem to be in the nature of a condition precedent, for if the commander of the convoy refuses to give them, or they cannot be obtained on account of the weather, the vessel may sail without them.5

If a vessel neglects to obey sailing orders in starting, this is a breach of the warranty. Not only must a vessel sail with the convoy, but it would seem that she must start as soon as possible; and if she delays, and is lost in consequence thereof, the underwriters are exonerated, although some of the vessels started after she did. If the fleet is dispersed by a storm, the vessel insured may run immediately for her port of destination.8 So, if she is driven back to the port of clearance, she may sail again without waiting for a convoy from that port, or joining one at another port. And it has been held, that if, after the vessel has once joined the convoy, she is separated and lost, the underwriters are liable unless the separation was caused by the wilful fault of the master.10

D. Of the Warranty of the Time of Sailing.

Another express warranty of frequent occurrence is that which Veedon v. Wilmot, Park, Ins. 444,

1 Hibbert v. Pigou, Park, Ins. 443. The vessel in this case sailed with a single ship of war, joined the convoy, and was subsequently lost. It was held, that, as she had not sailed with convoy in the first instance, the underwriters were not liable.

2 Cohen 249.

note.

5 Victorin v. Cleeve, 2 Stra. 1250. Taylor v. Woodness, Park, Ins. 454. Waltham v. Thompson, 1 Marsh. Ins. 376.

8

Audley v. Duff, 2 B. & P. 111. See v. Hinckley, 1 Taunt. also Manning v. Gist, 3 Doug. 74.

Webb v. Thompson, B. & P. 5; Anderson v. Pitcher, 3 Esp. 124, 2 B. & P. 164. See also Hibbert v. Pigou, Park, Ins. 443, where this question was discussed, but not decided.

'Laing v. Glover, 5 Taunt. 49. This case was, however, decided under the provisions of the statute of 43 Geo. 3, ch. 57. See contra, Morrice v. Dillon, 2 Selw. N. P. (11th ed.) 1005.

10 Jeffries v. Legandra, 2 Salk. 443.

1

relates to the time of the ship's sailing. As to this it is now quite clear that a ship sails when she weighs anchor or casts off her fastenings and gets under way, if the intention be to proceed at once to sea, without further delay.2 If she moves with the intention of prosecuting her voyage, that is sufficient. But if not entirely ready ber and the 15th of February." On the 8th of February the plaintiff's vessel sailed from Newcastle upon Tyne for a port in the Belts. It was held that the rule was a warranty, and that “to” meant towards, and that the defendant, therefore, was not liable.

1 In Baines v. Holland, 10 Exch. 801, 32 Eng. L. & Eq. 503, the vessel was insured at and from New York to Quebec, during her stay there, and thence to the United Kingdom; the said ship being warranted to sail from Quebec on or before the 1st of November, 1853. The vessel was lost on the voyage from New York to Quebec. It was set up in defence, that on the 1st of November the vessel was at sea on her voyage from New York to Quebec, that the loss did not take place till after the 1st, and that the vessel did not sail from New York in time to enable her to complete the voyage to Quebec, and comply with the warranty of sailing from that port on or before the 1st.. On demurrer it was held that the warranty was to be construed as an undertaking, to sail from Quebec on or before the 1st, if the vessel arrived there by that time. Parke, B., said: "The most natural construction is, that, so far as relates to the voyage from New York to Quebec, the policy is altogether without limitation as to time; but, as regards the voyage from Quebec to the United Kingdom, the underwriters are not responsible unless the vessel sails from Quebec on or before the 1st of November, 1853." In Colledge v. Harty, 6 Exch. 205, 3 Eng. L. & Eq. 550, the policy was made subject to certain rules, one of which was that vessels were not to sail "from any port on the east coast of Great Britain between the 5th of October and the 5th of April to any port or place in the Baltic. . . . or to any port or place in the Belts between the 20th of Decem

The ship must be actually moving on her voyage; hence, in a case where there were two anchors out, and one was raised on the day on which she was warranted to sail, and the captain was prevented from raising the other by a heavy swell, it was held not to be a compliance with the warranty, although the ship lay overnight with only one anchor, and got under way the next morning without having had communication with the shore. Nelson v. Salvador, Moody & M. 309, Danson & Ll.

219.

In Cochran v. Fisher, 4 Tyrw 424, 2 Cromp. & M. 581, the ship was lying in a dock at Dublin, warranted not to sail after August 15. On that day she cleared at the custom-house, and was ready for sea; but, as the wind blew directly up the river so that it was impossible to sail, she was warped down the river about half a mile. It was impossible for her to get out of the harbor on that day, and she did not leave till the 17th. Lord Lyndhurst, C. B., said: "The question turns entirely on the intention of the captain; if, at the time of breaking ground and moving the vessel, he proceeded down the river with a bona fide intention of placing her in a more favorable position from which to prosecute the voyage, that would be

for sea, she has not sailed by merely moving down the harbor.1 If she moves, ready and intended for sea, but is afterwards accident

ally and compulsorily delayed, this is a sailing. But if, when ready and intending to sail, she is stopped by a storm or some

thing was ready for the voyage. Held that this was not a sailing. See also Hudson v. Bilton, 6 Ellis & B. 565, 36 Eng. L. & Eq. 248; Sharp v. Gibbs, 1 H. & N. 801, 40 Eng. L. & Eq. 383. In Williams v. Marshall, 6 Taunt. 390, 2 Marsh. 92, 1 J. B. Moore, 168, 7 Taunt. 468, the vessel was licensed to export goods from the port of London before the 10th of the month. The vessel cleared on the 9th at the London custom-house, and arrived at Gravesend on the 12th. There the master is required to deliver certain papers, and he then receives the cockets and the clearing-notes. When any drawback is to be repaid to the master on exportation, he cannot entitle himself to it without producing this clearing-note. Gibbs, C. J., in 6 Taunt. 390, said: "Whether she was covered by this license, or not, depends on the question whether she sailed on the 10th. I cannot say, however I may be disposed to favor the plaintiffs, that the clearing at the custom-house is an exportation. Considerable light is thrown on the question by the fact, that by the regulations, or at least by the practice, of this country, the drawback is not paid till after the passing GravesIn end; and therefore, upon the interpretation which has prevailed, of those acts of Parliament which give a drawback, it appears that ships are not considered as having exported till after passing Gravesend; therefore, with every disposition to favor this action, we cannot say that the plaintiffs are entitled to recover."

Ad. 514, the ship was warranted not to sail from ports in Ireland after the 1st of September. The ship dropped down the river from the port of Sligo before that time, in readiness for sea, except that she had not her full quantity of ballast, there being a bar at the mouth of the river which the ship could not cross with the full quantity on board. Boats were waiting outside on the 1st of September, to ship the remainder of the ballast, and the vessel crossed the bar on that day, but struck in doing so, and the master, to ascertain what damage she had received, put into an adjacent port, without taking the rest of his ballast, and this was not done till the 4th. Held, that the ship's dropping down the river and crossing the bar, without full ballast, was not sailing. Lord Tenterden, C. J., said: "The general principle of the decisions is this; that if a ship quits her moorings and removes, though only to a short distance, being perfectly ready to proceed upon her voyage, and is by some subsequent occurrence detained, that is nevertheless a sailing; but it is otherwise, if, at the time when she quits her moorings and hoists her sails, she is not in a condition for completing her sea voyage." Thompson v. Gillespy, 5 Ellis & B. 209, 32 Eng. L. & Eq. 153, the question arose whether the vessel had sailed from Sunderland for Constantinople pursuant to a charter-party. She had left the harbor with an incomplete crew, the master and mate were not on board, the shrouds and cables had not been put in proper condition for the voyage, and the bills of lading were not signed. The ship left the harbor with the intention of anchoring in the roadstead till every

1 Thellusson v. Fergusson, 1 Doug. 361; Thellusson v. Staples, 1 Doug. 366, note; Earle v. Harris, 1 Doug. 357. See also the two preceding notes.

similar obstruction ab extra before she gets under way, it may not be easy to reconcile the authorities. But the reasons given in some of the cases might lead to the conclusion, that, if the policy is not to attach until the vessel sails, it does not attach until an actual sailing, however that may be prevented. But if the policy has previously attached while the ship is in port, and the fact of her sailing or leaving the port on a certain day is a distinct warranty, and she is ready and intending to sail on that day, and is prevented by an accident or obstruction ab extra, it has been held that there is no breach of the warranty. But this may perhaps be doubtful.1

If the warranty be to sail from a place, a coast, or an island, on or before a certain day, the warranty is not complied with by sailing from it to return immediately to it, or from one port in the coast or island to another, but there must be an absolute setting sail with an intent to go finally away from it. It has been held, but, as we think, on insufficient reasons, that a warranty "to depart" means more than a warranty "to sail"; and if a vessel unmoors and gets under way, and is prevented by stress of weather from getting clear of the harbor, this would be no breach of a warranty "to sail," but is one of a warranty "to depart." 456; Dennis v. Ludlow, 2 Caines, 111. In Lang v. Anderdon, 3 B. & C. 495; the counsel argued that a different construction should be put upon the words "sail from" from that put upon the word " sail.” The court did not reject the distinction, but held that it was not necessary for the decision of that case, and it appears never to have been since adopted by the courts. If insurance is effected on a vessel at A, with liberty to touch at B, warranted to sail after a certain day, the warranty applies to the sailing from A, and the vessel must leave that port after the day named. Vezian v. Grant, Park on Ins. 430.

Hore v. Whitmore, Cowp. 784; Bond v. Nutt, Cowp. 601, and cases cited in the three preceding notes. In Hore v. Whitmore, the insurance was at and from Jamaica to London, warranted to sail before 26th July, 1776, and free from all restraints and detainments of kings, princes, etc. The ship was ready to sail before the time, but was detained by an embargo. It was contended that the embargo being expressly insured against excused the delay. But, on the other hand, it was said, that "the warranty was positive and express, that the ship should depart on or before the day appointed, and therefore must be complied with. And of this opinion was the court."

See Wright v. Shiffner, 11 East, 515; Cruikshank v. Janson, 2 Taunt. 301; Ridsdale v. Newnham, 3 M. & S.

Moir v. Royal Exchange Ass. Co., 3 M. & S. 461, 6 Taunt. 241, 1 Marsh. 576, 4 Camp. 84. In this case some stress seems to have been laid upon the fact that the use of the word "depart"