was cleared from Maryland to Falmouth, and a bond given that all the enumerated goods should be landed in Britain, and all the other goods in the British dominions. An affidavit of the owner stated that the vessel was bound for Falmouth. The bills of lading were, "To Falmouth and a market:" and there was no evidence whatever that she was destined for Cadiz. The place where she was taken was in the course from Maryland both to Cadiz and Falmouth, before the dividing point. Many circumstances led to a suspicion that she was, in truth, neither designed for Falmouth nor Cadiz, but for the port of Boston, to supply the American army; but there was not sufficient direct evidence of that fact.-At the trial, Lord Mansfield told the jury, that if they thought the voyage intended was to Cadiz, they must find for the plaintiff. If on the contrary, they should think there was was no design of going to Cadiz, they must find for the defendant. It also appeared in evidence, that the premium to insure a voyage from Maryland to Falmouth, and from thence to Cadiz, would have greatly exceeded what was paid in this case. Upon the motion for a new trial being argued, the counsel for the plaintiff cited the two cases above stated from Strange's Reports.

Lord Mansfield. "The policy, on the face of it, is from Maryland to Cadiz, and therefore purports to be a direct voyage to Cadiz. All contracts of insurance must be founded on truth, and the policies framed accordingly. When the insured intends a deviation from the direct voyage, it is always provided for, and the indemnification adapted to it. There never was a man so foolish as to intend a deviation from the voyage described, when the insurance is made, because that would be paying without an indemnification. Deviations from the voyage insured arise from after-thoughts, after-interest, after-temptation; and the party, who actually deviates from the voyage described, means to give up his policy. But a deviation merely intended, but never carried into effect, is as no deviation. In all the cases of that sort, the terminus à quo and ad quem, were certain and the same. Here, Was the voyage ever intended for Cadiz? There is not sufficient evidence of the design to go to Boston, for the Court to go upon. But some of the papers say to Falmouth and a market: some to Falmouth only. None mention Cadiz, nor was there any per

son in the ship, who ever heard of any intention to go to that port. A market is not synonimous to Cadiz : that expression might have meant Naples, Leghorn, or England. No man, upon the instructions, would have thought of getting the policy filled up to Cadiz. In short, that was never the voyage intended, and consequently is not what the underwriters meant to insure."

Mr. Justice Buller." I am of the same opinion. I believe the law to be according to the authorities mentioned on the part of the plaintiff: but it does not apply here. This is a question of fact. There cannot be a deviation from that which never existed. The weight of the evidence is, that the voyage was never designed for Cadiz."

Mr. Justice Willes and Mr. Justice Ashhurst concurring in the opinion delivered by Lord Mansfield and Mr. Justice Buller, the rule for a new trial was discharged.

Way v. Mo

digliani,

2 Term

In a still later case the same doctrine was advanced; namely, that if a ship be insured from a day certain from A. to B., and before the day sail on a different voyage from that Rep. 30. insured, the assured cannot recover; even though the ship afterwards fall into the course of the voyage insured, and be lost after the day on which the policy was to have attached.

Since the second edition of this work was published, the cases Wooldridge v. Boydell, and Way v. Modigliani, have again come under discussion in the Court of Common Pleas; and it has been held by the four Judges of that Court, one of whom sat in the Court of King's Bench when the two cases just reported were decided, that where the termini of the intended voyage continue the same as those described in the policy, an intention to go to an intermediate port, though that intention should be formed previous to the ship's sailing, will not vitiate the insurance till actual deviation. The case has already been quoted for another purpose; Kewley v. and the facts as to this point are shortly these. The insurance Black Rep. was at and from Grenada to Liverpool; the ship sailed from P. 343. See Grenada bound for Liverpool, but with a design formed before the commencement of the voyage, as appeared by the clearances,

VOL. 11.

I I

and

Ryan, 2 H.

ante, p. 22.

Green v.

I.d. Raym.

and was admitted on all sides, to touch at Cork in her way to Liverpool, but was totally lost before she arrived at the dividing point. In the course of the argument a case of Stott v. Vaughan was mentioned, as having been tried before Lord Kenyon, at the sittings at Guildhall, after Hilary Term 1794, in which His Lordship nonsuited the plaintiff, in an action on a policy on this very ship, being of opinion that the case fell within those of Wooldridge v. Boydell, and Way v. Modigliani, and that there was no inception of the voyage insured. The Court of Common Pleas, however, having taken time to deliberate upon this case of Kewley v. Ryan, delivered their opinion as to the 3d question, that where the termini of the intended voyage were really the same as those described in the policy, it was to be considered as the same voyage, and a design to deviate, not effected, would not vitiate the policy. That in Wooldridge v Boydell, it appeared there was no intention that the ship should go to Cadiz at all, which was mentioned in the policy as her port of delivery; and in Way v. Modigliani there was an actual deviation, by the ship going to fish on the banks of Newfoundland: those cases, therefore, were wholly different from the present, for here the ship was really bound to Liverpool, though there were also clearances for Cork. (a)

From the proposition just established, namely, that a mere intention to deviate will not vacate the policy, it follows as an immediate consequence, that whatever damage is sustained before actual deviation, will fall upon the underwriters.

Thus it was held by Lord Chief Justice Holt, who said, that Young, 2 if a policy of insurance be made to begin from the departure 840. 2 Salk. of the ship from England, until, &c. and after the departure a damage happens, &c. and then the ship deviates; though the policy is discharged from the time of the deviation, yet for the damages sustained before the deviation, the insurers shall make satisfaction to the insured.

444. S. C.

(a) See the case of Middlewood v. Blakes, 7 Term Rep. 162., and also Hesellon v. Allnutt, 1 M. & S. 46. where the several cases immediately preceding on the distinction between deviations intended, but not carried into effect, and non-inception of the voyage insured, are much considered.

Subject

Subject to the rules already advanced, deviation or not is a Dougl.787. question of fact, to be decided according to the circumstances

of the case.

19.

In cases of deviation, the premium is not to be returned; Vide post, because the risk being commenced, the underwriter is entitled to retain it.

In the case of Hogg v. Horner, above quoted, Lord Kenyon Vide ante, being of opinion that the ship had deviated, it was insisted for P. 444. the plaintiff, that as the intention to go to Faro (the going to which place was the deviation relied on by the defendant) had existed prior to the sailing, it was a non-inception of the voyage insured, and he had a right to the return of premium. Lord Kenyon, however, was of opinion that there was an inception of the risk at, and the contract was entire, consequently there could be no return of premium. But of this, more will be said in a subsequent chapter.

P-345

CHAPTER XVIII.

Of Non-Compliance with Warranties.

N the two preceding charters we have seen the effect, which

IN

the non-observance of implied conditions has upon the contract of insurance; we shall now proceed to consider the nature of warranties; their various kinds; and how far they ITerm Rep. must be complied with on the part of the insured, in order to render the contract binding between the parties. A warranty in a policy of insurance is a condition or a contingency, that a certain thing shall be done or happen, and unless that is performed, there is no valid contract. It is perfectly immaterial for what view the warranty is introduced; or whether the party had any view at all: but being once inserted, it becomes a binding condition on the insured: and unless he can shew. that he has literally fulfilled it, or that it was performed, the contract is the same as if it had never existed. (a) We have already seen that the breach of an implied condition is sufficient to avoid the policy; à fortiori, therefore, the effect must be the same, where the condition is express, and not liable to misrepresentation or error, because it makes a part of the written contract. To say that the underwriter should answer for a loss, notwithstanding the other party has failed in his engagements, would be to make a different rule in this species of contract, from that which subsists in every other; although this of all other contracts depends most upon the strictest attention to the purest rules of equity and good faith. Indeed the obligation to a strict performance of all promises and conditions in every species of contract, may be deduced,

Chap. 16, 17.

(a) By Lord Chancellor Eldon in the House of Lords, it is a clear and first principle of the law of insurance, that when a thing is warranted to be of a particular nature or description, it must be exactly such as it is stated to be. It is no matter, whether material or not; the only question is, Is this the thing de facto which I have signed ?-Newcastle Fire Insurance Company v. Macmorrow, 3 Dow. 255.