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SECT. 40. be reasonably fit to encounter the ordinary perils of the port.1

(3.) Where the policy contemplates a voyage in different stages, during which the subject-matter insured will be exposed to different degrees or kinds of peril, or the ship will require different kinds of equipment, the ship must be seaworthy at the commencement of each stage, and it is sufficient if at the commencement of each stage she is seaworthy for the purpose of that stage.2

(4.) A ship is deemed to be seaworthy when she is reasonably fit in all respects to encounter the ordinary perils of the seas of the adventure insured.3

(5.) In a time policy there is no implied warranty that the ship shall be seaworthy at any stage of the adventure, but where, with the privity of the assured, the ship is sent to sea in an unseaworthy state, the insurer is not liable for any loss attributable to unseaworthiness.1

Illustrations.

1. Policy on ship from Montreal to Halifax. At the time the ship sailed there was a defect in her boiler. The defect did not appear in the river, but disabled her when she got out to sea. She put back to port, and the defect was repaired. Afterwards she proceeded on her voyage, and was lost in bad weather. Held, that she was unseaworthy at the commencement of the voyage, and that the insurer was not liable.5

1 Quebec Mar. Ins. Co. v. Commercial Bank of Canada (1870), L. R. 3 P. C. at p. 241; cf. Haughton v. Empire Mar. Ins. Co. (1866), L. R. 1 Ex. 206 (overlapping policies).

2 Bouillon v. Lupton (1864), 33 L. J. C. P. at p. 43; Quebec Mar. Ins. Co. v. Commercial Bank of Canada (1870), L. R. 3 P. C. at p. 241; The Vortigern (1899), 8 Asp. Mar. Cas. 523, C. A.

3 Dixon v. Sadler (1839), 5 M. & W. at p. 414; Bouillon v. Lupton (1864), 33 L. J. C. P. at p. 43.

↑ McArthur, Ed. 2, p. 15; Fawcus v. Sarsfield (1856), 6 E. & B. 192; Dudgeon v. Pembroke (1877), 2 App. Cas. 284, H. L.

5 Quebec Mar. Ins. Co. v. Commercial Bank of Canada (1870), L. R. 3 P. C. 234.

2. Steamer, built for inland navigation in Trinidad, is insured from SECT. 40. the Clyde to Trinidad. In a rather heavy sea in the Atlantic she breaks asunder and is lost. With the exercise of reasonable care she might have been made more fit for the ocean transit. The insurer is not liable.1 3. Voyage policy on freight. The ship, being badly damaged, has to put into a port of distress, and the cargo is sent on in a substituted ship, which is lost. There is, it seems, no implied warranty that the substituted ship is seaworthy.2

4. Time policy on ship. As she is nearing port the master imprudently, and through bad seamanship, throws his ballast overboard. Before the ship reaches port she is struck by a squall and capsized. The insurer is liable.3

5. Time policy on ship lying in her owner's yard. She is sent to sea in an unseaworthy condition, and lost. The owner did not know she was unseaworthy. The insurer is liable.1

6. Policy on freight from Rangoon to London. The ship encounters heavy weather, and only eleven days after leaving Rangoon has to put back for repairs. This does not shift on to the assured the duty of proving that she was seaworthy when she sailed, but it is a question to be considered by the jury in finding whether she was seaworthy or unseaworthy.5

NOTE. The implied warranty, unless expressly waived, attaches to every voyage policy, whether on ship, freight, cargo, or any other interest.6

The warranty applies only to the commencement of the voyage, or, as the case may be, of each distinct stage of the voyage. At one time it was thought that the omission to employ a pilot, where pilotage was compulsory, constituted unseaworthiness, but that doctrine was subsequently disapproved.?

1 Turnbull v. Janson (1877), 3 Asp. Mar. Cas. 433, C. A. aliter if all reasonable means had been used, Clapham v. Langton (1864), 5 B. & S. 729, Ex. Ch.

2 De Cuadra v. Swann (1864), 16 C. B. N. S. 771, 3rd plea.

3 Dixon v. Sadler (1839), 5 M. & W. 414, affirmed 8 M. & W. 895.

This would equally apply to a voyage policy, ibid.

Dudgeon v. Pembroke (1877), 2 App. Cas. 284.

5 Pickup v. Thames Ins. Co. (1878), 3 Q. B. D. 594, C. A.

6 Knill v. Hooper (1857), 26 L. J. Ex. 377, 379 (policy on salvage of abandoned ship); Beccard v. Smith (1861), 14 Moore P. C. at p. 494 (goods).

7 Law v. Hollingworth (1797), 7 T. R. 160; disapproved, Dixon v. Sadler (1839), 5 M. & W. at p. 408; Sadler v. Dixon (1841), 8 M. & W. at p. 900, Ex. Ch.

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SECT. 40.

Lord Wensleydale, speaking of a voyage policy, says that a ship is seaworthy when she is in a fit state, "as to repairs, equipment, and crew, and in all other respects, to encounter the ordinary perils of the voyage insured at the time of sailing upon it." 1

The state of seaworthiness is a relative, not an absolute state. It must be determined with reference to the particular voyage and adventure in contemplation. "There is seaworthiness for the port, seaworthiness in some cases for the river, and seaworthiness in some cases (as in a case which has been put forward of a whaling voyage) for some definite, well-recognized, and distinctly separate stage of the voyage.'

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So, too, a ship may be seaworthy in herself, but not seaworthy for the purpose of the particular adventure, e.g. carrying deck cargo.3 On the other hand, if the insurer knows the nature of the risk it is sufficient if every reasonable precaution be taken.*

It is usual to pay "innocent shippers" as a matter of honour, though the ship be unseaworthy.5

There is no implied warranty that the lighters in which the goods are landed shall be seaworthy."

Questions of seaworthiness frequently arise in cases between shipper and shipowner;7 but such cases must be applied with caution to insurance law. A ship might, it is conceived, be seaworthy as between shipowner and insurer on ship, though unseaworthy as between shipowner and shipper of a particular cargo, e.g. frozen meat, which requires special freezing apparatus, though that does not affect the safety of the ship. Again, the warranty as to goods may apply at a different time from the warranty on ship, as in the case where goods are shipped at an intermediate port (cf. Lowndes, Ed. 2, p. 99).

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1 Dixon v. Sadler (1839), 5. M. & W. at p. 414.

2 Quebec Mar. Ins. Co. v. Commercial Bank of Canada (1870), L. R. 3 P. C. at p. 241.

3 Daniels v. Harris (1874), L. R. 10 C. P. 1 (policy on wine stowed on deck).

Burges v. Wickham (1863), 33 L. J. Q. B. 17 (river steamer sent across the sea to her destination).

5 See McArthur, Ed. 2, p. 15; but see Sleigh v. Tyser (1900), 2 Q. B. at p. 336, where shipper was partly to blame.

6 Lane v. Nixon (1866), L. R. 1 C. P. 412.

7 See Carver's Carriage by Sea, Ed. 3 (1900), §§ 17-22.

8 Cf. The Maori King (1895), 2 Q. B. 550, 558, C. A.

§ 41. In a policy on goods or other moveables there SECT. 41. is no implied warranty that the goods or moveables are No implied seaworthy.1

warranty that goods

are sea

NOTE.-Under a voyage policy the shipper, equally with the ship- worthy. owner, is responsible for the seaworthiness of the ship. See note to last section.

Though the shipper does not warrant the seaworthiness of goods insured, the insurer is not liable for any loss occasioned by vice propre.2

§ 42. There is an implied warranty that the adventure Warranty insured is a lawful one, and that [so far as the assured of legality. can control the matter] the adventure shall be carried out in a lawful manner.3

Illustrations.

1. Time policy on ship. The master, with the connivance of the owner, engages in smuggling. The ship is arrested in England. The insurer is not liable.4

2. Policy on freight, from a British port abroad to Liverpool. The master, unknown to his owner, stows a part of the cargo (timber) on deck, and sails without a certificate from the clearing officer, thereby contravening the statute 16 & 17 Vict. c. 107. The timber is lost by perils of the seas. The assured can recover.5

3. Policy for £400, insurer to pay for a total loss if ship does not arrive at Yokohama by a certain date. The ship does not arrive in time. As a fact, the assured had no interest in ship or cargo, and the policy was a wagering policy, but the insurer did not know this. The policy cannot be enforced."

1 Arnould, Ed. 6, p. 650; Koebel v. Saunders (1864), 33 L. J. C. P. 310 (cocoa-nut oil).

2 Koebel v. Saunders (1864), 33 L. J. C. P. 310; and see § 56, post.

3 Arnould, Ed. 6, p. 686; McArthur, Ed. 2, p. 19; Dudgeon v. Pembroke (1874), L. R. 9 Q. B. at p. 586.

♦ Pipon v. Cope (1808), 1 Camp. 434, as explained, Trinder v. Thames and Mersey Ins. Co. (1898), 2 Q. B. at p. 129, C. A. If the master smuggles without the owner's connivance it is barratry, Cory v. Burr (1883), 8 App. Cas. at p. 399.

5 Wilson v. Rankin (1865), L. R. 1 Q. B. 162, Ex. Ch. Aliter, if the owner was privy to the illegality; Cunard v. Hyde (1860), 29 L. J. Q. B. 6 (policy on goods).

6 Gedge v. Royal Exchange (1900), 2 Q. B. 214, at p. 222.

SECT. 42.

Implied condition

as to com

of risk.

NOTE.-"Where a voyage is illegal an insurance upon such a voyage is invalid. Thus during the war policies on vessels sailing in contravention of the Convoy Acts were held void, so too when the voyage was against the East India Company Acts, or the general Navigation Act (6 Geo. 4, c. 109), which statutes were made with reference to the general policy of the realm."

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A contract to do a thing which cannot be done without a violation of the law is void, whether the parties know the law or not. But if a contract is capable of being performed in a legal manner, it is necessary to show clearly the intention to perform it in an illegal manner in order to avoid it.2

An insurance on enemies' goods or against British capture is illegal, but this rule does not apply to an insurance against seizure by a foreign government of the property of its own subjects where the policy is effected before the outbreak of hostilities.3

See further, notes to §§ 3 and 4, ante, and Owen's Declaration of War, p. 405.

The Voyage.

§ 43.-(1.) Where the subject-matter is insured by a voyage policy "at and from" or "from" a particular mencement place, it is not necessary that the ship should be at that place when the contract is concluded, but there is an implied condition that the adventure shall be commenced within a reasonable time, and that if the adventure be not so commenced the insurer may avoid the contract.1

(2.) [The implied condition may be negatived by showing that the delay was caused by circumstances known to the insurer before the contract was concluded, or by showing that he acquiesced in the delay.]

1 Redmond v. Smith (1844), 7 M. & Gr. at p. 474.

2 Waugh v. Morris (1873), L. R. 8 Q. B. 202.

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3 Driefontein Gold Mines v. Jansen (1900), 2 Q. B. 339 (gold belonging to Transvaal company insured from Transvaal mines to England).

De Wolf v. Archangel Ins. Co. (1874), L. R. 9 Q. B. 451 (summer

risk turned into winter risk).

5 This seems fair, but is a somewhat doubtful proposition. See ibid. at p. 457, and see Arnould, Ed. 6, p. 409, as to usage.

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