This clause practically grants to the shipowner indemnity as regards all claims brought by parties interested in cargo, whether already loaded or not, in consequence of the action of the shipmaster when beyond the owner's control. The clause is very wide-reaching; it is extremely hard to imagine what may not be included under the words "improper navigation of that or any other ship or boat." Probably the meaning would be made clearer by the addition of some such words as "in the course of the voyage insured." In connection with the words "improper navigation," it is right to remark that in the case of the Warkworth (Court of Appeal, June 1884, Esher, M.R., Bowen and Fry, L. JJ.) it was held that when a collision for which a vessel is held to blame is caused solely by a defect in her steam steering-gear, negligently repaired ashore by people employed by the shipowner, that constitutes "improper navigation" within the meaning of the Merchant Shipping Act.

In connection with paragraph 5, dealing with removal of wreck, there are three cases of interest :—

(a) In the case Earl of Eglinton v. Norman (Court of Appeal, April 1877)1 it was held that when harbour officials, in pursuance of the provisions of the Harbour Acts of 1847, remove wreck which blocks the entrance or approach of a harbour, the "owner," who by the Act has to bear the expense of this, is the shipowner to whom the vessel belonged when she was wrecked, and not the underwriter on the ordinary marine policy who has paid a total loss and claimed the salvage. This decision has been in part overruled by the decision of the House of Lords in The Crystal (Arrow Shipping Co. v. Tyne Commissioners June 1894: 10 Times L.R. 551), but in that decision the Lord Chancellor (Herschell) said: "It is unnecessary to determine whether the underwriters are to be treated as the owners within the meaning of the statute." 2

(b) In Castellain v. Thompson (Common Bench,

13 Asp. Mar. L. C. 471.

27 LT. N.S. 424.

S

November 1862)1 it was held that when a flatowner raised his sunken flat and her cargo without getting the cargo-owner's consent or approval of the incurring of the expenses necessarily involved, he was bound to deliver the cargo in return for the agreed freight and without any lien for share of

expenses.

(c) In a somewhat similar case, Prehn v. Bailey (Court of Appeal, 20th July 1881, Jessel, M.R.),2 it was held that when the Thames Conservancy lifted a vessel and cargo, sunk in collision by the vessel's own fault, and delivered them to the shipowner on payment of the cost of raising, the shipowner (having limited his liability) had no lien on the cargo and no claim on it for a share of the expenses.

The hardship of the position of the shipowner in the three cases cited is justification enough for any attempts on the part of underwriters to protect him from such liabilities as those described. In paragraph 5 we consequently find

(5) Any attempted or actual raising, removal, or destruction of the wreck of the said ship or the cargo thereof, or any neglect or failure to raise, remove, or destroy the same, but deducting the value of any salvage, wreck, or cargo which may be recovered by the insured, or which may be available for or chargeable with such claims or expenses.

Having exhausted the liabilities the policy proceeds to deal in paragraph 6 with—

(6) The costs and expenses incurred by the insured in resisting any claims covered by this policy, or in any legal proceedings in relation to any such claims, provided such costs or expenses shall have been incurred with the consent in writing of the company.

Thereafter special provision is made for excluding all claims below £10, except claims for costs; and excluding

1 See Barraclough v. Brown, 1896, 12 Times L. R. 250, J. M. Lennard (House of Lords, 19 July 1897); and Burger v. Indemnity, 1899, 15 Times L. R. 506. 26 P.D. 127.

absolutely all claims arising from improper stowage, the latter no doubt on the ground that the stowage is entirely within the control of the shipowner or his agents.

Next follows a section obliging the assured to limit his liability where he can legally do so, under penalty of the company being free to refuse him any indemnity beyond that to which he would have been entitled had he so limited his liability.

Thereafter comes the important clause :—

In no case shall the aggregate amount of the indemnity to be made or contributed to by the company in respect of any one occasion exceed in all (including interests and costs) £30 per ton on the gross tonnage of the insured ship.

These are the sole limitations to the scope of the protection afforded by the special policy in question. The document is, as far as the insurance of liabilities goes, simple and to all appearance adequate. It is at least an attempt on the part of professional underwriters to give to the shipowners an insurance of their tonnage both against the perils it may be exposed to and the liabilities it may incur, and to give this in one document combining the traditional form of Lloyd's policy and a form designed to meet the reasonable wants of protection with respect to liabilities which are extremely serious and press on shipowners with unmistakable weight.

CHAPTER XVI

WARRANTIES AND REPRESENTATIONS

IN the language of marine insurance the word " warranty" is used to denote two entirely different things: 1

A. It sometimes denotes "stipulations ... which are exceptions to the general terms of the contract, by which the underwriter is to be exempted from certain risks, either wholly or in part" (Marshall, p. 353, note a). For instance, it is not unusual to hear the F.P.A. clause described as the F.P.A. "warranty," the F.C. and S. clause as the F.C. and S. "warranty," and sometimes the memorandum is called absolutely "the warranty." The reason is plain; as these clauses run in the form "warranted free from," etc., it is not unnatural that they should be called "warranties." It is also not impossible that this use of the word was encouraged by underwriters, for, as will be found later, the effect of a "warranty" in the sense about to be explained is very stringent, and the application of this word to denote an exception or exemption from the general terms of the contract may have been intended as a sign of the strictness with which that exception or exemption would be interpreted by the underwriter in his own favour.

B. In the stricter sense a warranty in a contract of marine insurance is :

1 Cf. Arthur Cohen in Law Quarterly Review, April 1895, "A warranty is a condition rendering the contract voidable in case of noncompliance, and not a stipulation for breach of which action lies. It is this essential distinction between a condition and a stipulation that Mr. Arnould and Mr. Phillips have overlooked."

I. "A stipulation inserted in writing on the face of the policy, on the literal truth or fulfilment of which the validity of the contract depends" (Arnould, p. 625).

Or

II. A fundamental essential factor or condition inherent in each and every contract of marine insurance without

exception.

The former class of warranties being stipulations set forth on the policy are called express (or expressed) warranties. The latter being essential to the whole universe of marine insurance do not require any form of expression, appear in no policy or other document, but remain immanent and are of absolutely controlling effect: they are therefore termed implied warranties.1

I. Express Warranties.-No covenant can amount to an express warranty unless it appear written (or printed) on the face of the policy. In Pawson v. Barnevelt, 1779,2 the case turned upon the importance to be attached to a written paper of instructions, stating that the vessel insured "mounted twelve guns and twenty men," wrapped up with and enclosed in the policy when it was brought to the underwriters for signature. Lord Mansfield said it was a mere question of law, and without hearing the evidence of the defendants' witnesses (who were ready to state that a written memorandum enclosed was always considered as part of the policy), "decided that a written paper did not become a strict warranty by being folded up in the policy" (Park, p. 479). The same eminent judge ruled in Bize v. Fletcher, 1779,2 that the contents of a slip of paper wafered

1 It should be observed that the word "warranty" has in marine insurance a sense quite different from what it has in the general English law of contract, in which it is used to denote an independent subsidiary contract, breach of which does not entitle the offended party to avoid or rescind the contract, but only to take action for breach or for set-off. The covenant in contracts other than those of marine insurance, corresponding to a warranty as described above, is termed a "condition." In Hibbert v. Pigon, 1783, Lord Mansfield said, "The warranty in a contract of insurance is a condition or a contingency, and unless that be performed there is no contract (Marshall, p. 375).

2 I Dougl. 12, note 4.

"