ch. 113. These acts being found ineffectual, a subsequent statute 43 G. 3. has repealed most of these provisions, and has declared, that 5.1 & 2. if any person shall wilfully cast away, burn, or otherwise destroy any ship or vessel, or in anywise counsel, direct, or procure the same to be done, and the same accordingly be done, with intent thereby wilfully and maliciously to prejudice any owner of such ship, or any owner of goods laden thereon, or any person or body corporate, that hath underwritten on the said ship, freight, or cargo, the person so offending shall suffer death as a felon without clergy. And sect. 3. directs the mode of trial, either in the County or in the Admiralty. And sect. 5. directs the proceedings against accessories to these offences. These are the only provisions which the legislature of this country has, as yet, thought proper to make for the prevention of crimes of this enormity: but as the records of our courts of justice evidently prove that frauds are too frequent in policies of insurance, greater severity than merely annulling the contract seems necessary, in order to put a stop to such offences. AVING in the preceding chapter treated very fully of the influence which fraud has upon the contract of insurance; we proceed to shew, that other circumstances, in which no fraud whatever can be discovered, or even suspected, will also vitiate and annul the policy. Of this nature is the doctrine of Sea-worthiness. Upon this point it has been determined, that every ship insured must, at the time of the insurance, be able to perform the voyage, unless some external accident should happen; and if she have a latent defect wholly unknown to the parties, that will vacate the contract; and the insurers are discharged. This doctrine is founded upon that general principle of insurance law, that the insurers shall not be responsible for any loss arising from the insufficient or defective quality or condition of the thing insured. There is in the contract of insurance a tacit and implied agreement that every thing shall be in that state and condition, in which it ought to be: and therefore it is not sufficient for the insured to say, that he did not know that the ship was not sea-worthy; for he ought to know that she was so, at the time he made the insurance. The ship is the substratum of the contract between the parties; a ship not capable of performing the voyage is the same, as if there were no ship at all; and although the defect may not be known to the person insured, yet the very foundation of the contract being gone, the law is clearly in favour of the underwriter; because such a defect is not the consequence of any external misfortune, or any unavoidable accident, arising from the perils of the sea, or any other risk, against which the underwriter engages to indemnify the person insured. To support a contrary doc trine would introduce a variety of frauds, as it would probably subject the underwriter to account for the loss, diminution, or waste, which may happen from the necessary and ordinary use of the thing insured; or the wear and tear of the ship in the common course of the voyage: and all of these are risks, to which the insurer has never been considered as exposed. From what has been said it appears, that the ground of decision in this case is perfectly distinct from any principle of fraud: that it depends merely upon this, that the insured is presumed to be better acquainted with the state and condition of his ship than any other man; and that he has tacitly undertaken, that she is in a condition to perform the destined voyage. In the cause of Carter v. Boehm, which was decided in Easter term 1766, Lord Mansfield, in discoursing upon the case then before him, affirms the law respecting the necessity of a ship being sea-worthy when she is insured: for he "The utmost that can be contended 3 Burr. "for is, that the underwriter trusted to the fort being in the "condition in which it ought to be; in like manner as it is "taken for granted, that a ship insured is sea-worthy." But although the insured ought to know whether his ship was sea-worthy or not at the time she set out upon her voyage; yet he may not be able to know the condition she may be in, 5 Burr. after she is out a twelvemonth: and therefore, whenever it can be made appear, that the decay, to which the loss is attributable, did not commence till a period subsequent to the insurance, as she was sea-worthy at the time, the underwriter, it is presumed, would be liable. Indeed, in a late case upon Eden v. another point, but where the same principle was much relied Parkinson, upon, Lord Mansfield said, " By an implied warranty every says, ship insured must be tight, staunch, and strong: but it is "sufficient if she be so at the time of her sailing. She may cease to be so in twenty-four hours after departure, and yet the underwriter will continue liable (a)." Every case of (a) But if a ship sail upon a voyage, and in a day or two become leaky, and founder, or is obliged to return to port without any storm, or visible or adequate cause to produce such an effect, the presumption is, that she was not sea-worthy when she sailed; and the jury upon the plaintiff's own case, may draw such a conclusion. The principles of law, applicable to the implied warranty of sea-worthiness, as stated in the preceding case, and in the summary at the beginning of this chapter, have lately been fully recognized 2804. Dougl. 732. Munro v. Vandam, Sittings bef. Ld. Kenyon at G. Hall, after Mich. 1794. Watson v. Clark, of this kind, it is true, must depend upon its own circumstances; but when they are once ascertained, the rule of law is clear and decisive. The most material case upon this subject in the law of England is that of the Mills frigate, which underwent a variety of discussion in several courts, and in which all the principles on which this doctrine is founded were fully discussed. I have used my utmost endeavours to procure a copy of the opinions of the Judges upon that case; but they have been ineffectual: therefore the reader must be satisfied wiih a full statement of the circumstances, as they appeared upon the demurrer to the evidence. Before the proceedings in this case are stated, it will be necessary to mention, that an action had been brought in the Court of Common Pleas on the same policy against one of the underwriters; and Lord Camden, who tried that cause, directed the jury to find a verdict for the plaintiff: .but upon a motion for a new trial, His Lordship declared, that he had changed his opinion: and the whole Court of Common Pleas laid down the principles above stated, and directed a recognized and adopted in several cases upon appeals from Scotland in the House of Lords. The facts of those cases are not at all material to be mentioned: but in one case, it was stated to be a clear and established I Dow. 336. Principle, that if a ship be sea-worthy at the commencement of the risk, though she becomes otherwise in an hour from that time, the warranty is complied with, and the underwriter liable. This is exactly conformable to Lord Mansfield's doctrine in the case of Eden v. Parkinson, quoted above in the text. But in the same case it was also said by two noble Lords, "Thatwhen the inability of the ship to perform the voyage becomes evident, immediately after leaving the port, or in a short time after the risk commences, without any apparent cause of injury, the presumption is, that "this inability has arisen from causes existing before her setting sail on "her intended voyage, and that the ship was not then sea-worthy, and "the onus probandi in such a case is thrown upon the assured to shew that "the inability arose from causes subsequent to the commencement of the voyage." This latter doctrine is in conformity with Lord Kenyon's opinion in Munro v. Vandam. Parker v. 2 Dow. 23. Watt v. * Dow. 32. This does not destroy the doctrine that the ship is primâ facie to be deemed sea-worthy, but merely that when a ship, soon after sailing, is found unfit to proceed, the question must be decided by some evidence or by rational inference from the circumstances. In the House of Lords also it has been held that a vessel cannot be deemed sea-worthy for a foreign voyage without knees. new new trial. Upon the second trial, Lord Camden stated to the jury the opinion he had formed upon the subject, and a verdict was accordingly given for the defendant, which, upon a subsequent application, the Court of Common Pleas refused to set aside. The plaintiffs then commenced a new action in the Court of Exchequer against another of the underwriters, and which is now the subject of our attention. 66 This was an action on a policy of insurance, lost or not lost, at and from the Leeward Islands to London, warranted to sail on or before the 26th of July, upon any kind of goods, wares, and merchandises; and also upon the body, tackle, &c. of and in the good ship or vessel called the Mills Frigate, beginning the adventure on the goods from the loading thereof on board the said ship at St. Kitt's, and upon the ship from her arrival at the Leeward Islands. The defendant undertakes to indemnify against the usual risks, for a premium of 2l. 10s. per cent. The loss was described in the first count of the declaration in these words: "That the said ship, after "her departure from Nevis on her voyage, and during her "said voyage, sailing and proceeding on the high seas by and through the force of winds and tempestuous weather, and by and through the mere perils and dangers of the seas, sprang divers leaks, and became very leaky, crippled, bulged, disjointed, split, and wholly lost." In the second count the loss is alleged thus: " By and through the mere "perils and dangers of the seas, and by the starting and loosening of one or more plank or planks of the said ship, " and by accidentally springing one or more leak or leaks, the "said ship became very leaky, crippled, &c. and totally un"able to proceed on, or perform the said voyage." There were two other counts in the declaration upon a policy on freight to recover from the underwriter the amount of his insurance upon that also; and a fifth count for money had and received to the plaintiff's use. The defendant pleaded the general issue; and paid the premiums into court. 66 66 66 66 This cause came on to be tried before Lord Chief Baron Parker; and the defendant demurred to the evidence produced on the part of the plaintiff. The demurrer follows in these words:-Thereupon the said John and Thomas Mills (the plaintiffs) Mills and another v. chequer. |