concealment and fact of nonhow proved. burden of proof will be the other way; for in such cases there Materiality of is no presumption arising from the nature of the fact itself, that, if communicated, the policy could never have been made on the terms upon which it was actually effected. In the United States it appears to have been decided generally in the Supreme Court of Massachusetts, that the assured is not only bound to prove the materiality of the fact concealed, but also the negative that it was not disclosed. (d) In New York, on the other hand, the established practice casts the onus probandi on the plaintiff. (e) disclosure founded on El kin v. Jansen. * 576 Mr. Duer considers (f), and I confess it appears to me, Suggested rule that the good sense of the matter is not to require any thing further from the underwriter in order to support the allegation of non-communication, than to show, 1. that the facts were known to the plaintiff before the subscription of the policy; *and, 2. that these facts were of such a nature that, if communicated, it is unreasonable to suppose that the underwriter would have taken the risk on the terms which it appears, by the policy, that he actually took it at. This surely ought to be considered sufficiently strong presumptive proof in the first instance of non-communication; sufficiently strong, that is, to put the plaintiff, in order to rebut it, on direct proof of communication. If this be so, it will follow, considering the meaning which the cases show to belong to the word material, that no direct proof ought to be required of non-communication of a material fact known to the assured before the execution of the policy. (d) † Fiske v. New Engl. Ins. Comp. 15 Pick 316, 317. (f) Duer on Representations, note xx. p. 192, 193. 2 Duer, Ins. 684 to 686, (e) † Livingston v. Delafield, 3 Caines, and in note. } 49. 577 * Of express warranties generally their *CHAP. III. OF EXPRESS WARRANTIES. IN treating of Express Warranties, we will consider the subject under the following heads: Sect. I. Of Express Warranties generally- their Form, Con- Sect. II. Warranties of Ship's Safety at a particular Time Sect. V. Warranty of Neutrality. Sect. VI. Effect of Foreign Judgments in proving a Forfeiture of Neutrality. SECT. I. Of Express Warranties generally-their Form, Construction, and Mode of Fulfilment. (a) § 213. An express warranty is a stipulation inserted in writing on the face of the policy, on the literal truth or fulfilform, construc- ment of which the validity of the entire contract depends.1 --- tion, and mode of fulfilment. These written stipulations either allege the existence of Definition of an some fact, or state of things, at the time, or previous to the time, of making the policy, as, that the thing insured is express war ranty. (a) The student is recommended to ciples of the doctrine of express warconfine his attention to this first Sec- ranties. tion, which embodies the general prin 13 Kent, (5th ed.) 288; Wood v. Hartford Fire Ins. Co. 13 Conn. 533. ranties gene * 578 Promissory and neutral property, that the ship is of such a force, that she ofexpress warsailed on such a day, or was all well at such a time; or they rally-their undertake for the happening of future events, or the form, construcper- tion, and mode forming of future acts, as, that the ship shall sail on or be- of fulfilment. fore a given day; that she shall depart with convoy; that she shall be manned with such a complement of men, &c. (b) 1 *In the former case, Mr. Marshal terms the stipulation an affirmative, and in the latter a promissory warranty; but the distinction between the two classes is one rather of form than substance, many warranties that are in form affirmative being, in fact also promissory, as, e. g. the warranty that the ship is neutral not only affirms that she is so at the date of the policy, but also engages that, as far as depends on the assured, she shall continue neutral, for the purposes of protection, throughout the whole duration of the risk. affirmative war ranties. be written on the face of the policy. warranty must It is a fixed and long established rule, that nothing can Every express amount to an express warranty, i. e., to an explicit condition, on the literal truth of which the validity of the contract depends, unless it be inserted in writing on the face of the pol icy.2 Thus, as has already appeared in the chapter on representations, a written paper of instructions, stating amongst other things, that the ship "mounts twelve guns and twenty men," was held not to be an express warranty to that effect, though it was wrapped up with and inclosed in, the policy when brought to the underwriters for subscription (c); and the decision was the same with regard to a similar paper, even though wafered to the policy at the time of subscribing. (d) But, although it is absolutely essential that an express war- It does not mat ranty should be written somewhere or other, on the face of the policy, yet, it does not matter on what part of the paper; it need not be in the body or printed part of the policy; it may be in the margin or at the foot of the policy, and written either in the usual way or transversely. (e) There are cases, however, in which it is not even necessary that an express warranty should be actually written on the (6) Marsh. on Ins. 353. (e) Kenyon v. Berthon, Dougl. 12. (c) Pawson v. Barnevelt, Dongl. 12. n. Blackhurst v. Cockell, 3 T. Rep. 360. (d) Bean v. Stupart, Dougl. 11. 13 Kent, (5th. ed.) 289. * 3 Kent, (5th ed.) 288. ter whereabouts on the face of the policy the warranty is written, nor in what way. A stipulation proposals or contained in ranties generally - their form, construc Of express war face of the policy, for, if it forms part of any rules or conditions, which, though extrinsic to the policy, are referred to tion, and mode therein, it will be considered as incorporated with the contract, and its literal fulfilment be as strictly enforced as *though it were actually inserted in writing on the face of the instrument. (f) of fulfilment. 579 * An express warranty does peculiar form of explicit clause. words, nor any No particular form of words is requisite to constitute an not require any express warranty: the word "warranty" or "warranted," for instance, is in no case necessary. The words, "to sail on such a day," or "in port," or "all well" on such a day, or "carrying so many guns and so many men," &c. if written in the body, at the foot, or on the margin of the policy, would amount to an express warranty, requiring a literal fulfilment quite as much as any more formal clauses to the same effect. (g) 1 A description in the policy of the national charac ter of the thing insured amounts to an express war In some cases, indeed, it is not even requisite that there should be any explicit clause of warranty at all; for, as we shall have occasion to observe more at length hereafter, the mere description in the policy of the thing insured as being ranty of its na- of a certain nation, as “a Danish brig," "the Swedish tionality. ship Sophia," &c. will amount to an express warranty that the thing insured has the national character thus ascribed to it in the policy, and impose the same duties on the assured, in relation to it, as though a formal clause of warranty had been inserted to that effect. Thus, where a policy of insur ance was effected "on goods on board the Mount Vernon, an American ship," it was held, that this description of the ship in the policy clearly contained a warranty that she was an American ship, and therefore induced a necessity of her (ƒ) Pettigrew v. Pringle, 3 B. & Ad. 314. Graham v. Barras, 5 B. & Ad. 1011. The rule was established in the older cases of Rutledge v. Burrell, 1 H. Bl. 255, and Wood v. Worsley, 2 H. Bl. 574, and 6 T. Rep. 710. S. C., which were cases on fire policies. (g) Kenyon v. Berthon, Dougl. 12. 1 Wood v. Hartford Fire Ins. Co. 13 Conn. 533; Callaghan v. Atlantic Ins. Co. of N. Y. 1 Edwards, Ch. 64. 2 See Lewis v. Thatcher, 15 Mass. 431; Higgins v. Livermore, 14 Mass. 106 Atherton v. Brown, 14 Mass. 152; Goix v. Low, 1 John. Cas. 341; Murray v. United Ins. Co. 2 John. Cas. 168; Barker v. Phoenix Ins. Co. 8 John. 237; Francis . Ocean Ins. Co. 6 Cowen, 404; Vandenheuvel v. United Ins. Co. 2 John. Cas. 127, 451; Murray v. United Ins. Co. 2 John. Cas. 168; Jenks v. Hallet, 1 Caines, 60. ranties gene being documented, as American ships were bound to be by Of express warthe treaties then subsisting between the United States and rally their France. (h) 1 In one case an attempt was made to push this doctrine to a very great extent, by contending that the mere fact of describing the ship in the policy by an English name, as the Three Sisters, instead of the Tres Hermanas, or the Mark Anthony, instead of the Marco Antonio, amounted to a warranty that the ship was English; but Lord Ellenborough decisively rejected the attempt, and held that no warranty of nationality could be inferred from the language in which the ship's name was expressed in the policy. (i) On the other hand, it appears to have been decided in the United States, that the mere allegation of a fact in the policy shall not amount to a warranty where it is clear, from the terms of the policy itself, that the fact alleged can, in the particular case, have no relation to the risk. Hence, where a policy was effected "on the good British brig called the John," but the insurance was against sea risks only, it was held in the United States, that this mere description of the ship as British should not be construed as a warranty that she was such, because the fact of her being British or not could not, on such a policy as this, have affected the underwriter's judgment of the risks. (j) Mr. Phillips considers this distinction well taken, if rigorously confined to cases where it plainly appears that the fact alleged could not possibly, in the opinion of any man, have any relation to the risks insured against in the particular policy. (k) These cases must, however, be of exceedingly rare occurrence, and, on the whole, it appears better to avoid entering in any case into the question of the materiality of the fact (h) Baring v. Clagget, 3 Bos. & Pull. 201. S. C. 5 East, 398. Lothian v. Henderson, 3 Bos. & Pull. 499. And see the cases in the United States, in 1 Phillips on Ins. 347, in notis. (i) Clapham v. Cologan, 3 Camp. 381. (j) † Mackie v. Pleasants, 2 Binn. 63, cited 1 Phillips Ins. 348. () 1 Phillips on Ins. 348, 349. form, construction, and mode of fulfilment. But merely exname of the language, does pressing the ship, in a given not. * 580 Though such descriptive allegation of natonality plainly appear to have been immaterial to the risks, will still be express war it construed as an al character in this country, ranty of nation though not in the United States. 1 A vessel being insured, in time of peace, as the "British Brig," &c. was held thereby to be warranted to belong to British owners, to have the documents and equipments of a British vessel, and to be navigated in the character of such a vessel. Francis v. Ocean Ins. Co. 6 Cowen, 404. |