adjudicative clause of the sentence, referring to all that had preceded, used these words, "Whereupon the Court declared the ship and cargo to be lawful prize." Sir William Grant, on appeal, giving judgment at the Cockpit, held, that as the French tribunal had considered the question whether the property was enemy's or neutral, and had then adjudged it to be lawful prize, this was sufficient to falsify the warranty, as they must be supposed to have proceeded on the ground that it was enemy's property. "The result of all the cases," said this very learned Judge, "is, that a sentence of a Court of Admiralty is conclusive as to all that it professes to decide. Now, is it possible to say that this Court did not profess to decide whether this was, or was not, enemy's property? It was the only question the Court did profess to decide." 1 The presumption prima facie is, that such sentences have Sir William Grant, in the same case, intimated that there is a general presumption that such sentences proceed on legitimate grounds, which throws on the party impeaching them the duty of showing that it has proceeded on some lawful grounds. other grounds. 1 Kindersley v. Chase, at the Cockpit, 22nd July, 1801, 1 Marshall, Ins. 425, 426, 427. See also Bolton v. Gladstone, 5 East, 155; (in error) 2 Taunt. 85, which proceeded on the same principle. And see the various cases illustrative of breach of war- 2 See the effect of judgments, and proceeded on AFTER what is laid down, in a preceding chapter, of warranties, as distinguished from representations,—that the former must always appear on the face of the policy,—the superscription to the present chapter follows with a semblance of inconsistency and contradiction. It is in appearance only, however; for, in reality, there is none. The warranties to be here considered are almost never expressed on the face of the policy, but being implied in it by the law of the land, they are of the same obligatory force and high evidence as the law itself, impaired in neither by being omitted from the instrument, and gaining nothing in either by being expressed in the policy.' Seaworthiness. Of these warranties, by far the most important is that of seaworthiness. In every voyage policy there is an implied warranty that the ship is seaworthy when the risk attaches; by which is meant that she shall be in a fit state, as to repairs, equipments, crew, and all other respects, to encounter the ordinary perils of the risk insured at the time of its commencing. 1 See ante, p. 513.-Ed. 2 Per Parke, B., Dixon v. Sadler, 5 M. & W. 414. There is nothing in the law of marine insurance more important to commerce and the preservation of human life, than this warranty.' It is not implied, however, in time Implied in policies; but in voyage policies, it is a condition precedent to the underwriter's liability for any loss incurred during the continuance of the risk.2 voyage policies only. in meaning. Seaworthiness, however, is a word the import of which The term varies varies with the place, the voyage, class of the ship, or even the nature of the cargo. The ship may be fit for port or river risks, and that suffices while there; or seaworthy for one voyage and not for another, or for one class of cargo and not for another; or as fit for the voyage contemplated as such a vessel is capable of being made; she must not be overloaded, and her cargo must not be badly stowed.' "The term seaworthy," said Erle, J., in the House of Lords, "when used in reference to marine insurance, expresses a relation between the state of the ship and the perils it has to meet in the situation it is in.”• 6 It matters not whether the assured know it or not; if the ship was not, in fact, seaworthy at the outset of the adventure, either in the degree commensurate with her then risk, or for the voyage, that state of things never existed which was the sole foundation for the underwriter's promise, and he consequently can never be bound thereby. Hence, as Lord Eldon says, "It is not necessary to inquire whether the owners acted honestly and fairly in the transaction." Thus, notwithstanding the owner had his ship surveyed 1 See the observations of Lord Eldon in Douglas v. Scougall, 4 Dow, 276, and of Lord Redesdale, in Wilkie v. Geddes, 3 Dow, 60. 2 Per Lawrence, J., Christie v.Secretan, 8 T. R. 192, 198; per Lord Ellenborough, Wedderburn v. Bell, 1 Camp. 1, 2. 3 Per Erle, C. J., Foley v. Tabor, 2 F. & F. 662.. Annen v. Woodman, 3 Taunt. 299; Bouillon v. Lupton, 33 L. J., C. P. 37; per Parke, B., 5 M. & W. 414; per Alderson, B., 4 H. of Lds. C. 393. 5 Biccard v. Shepherd, 14 Moo. P. C. 471. 6 Knill v. Hooper, 26 L. J. (Ex.) 377; 2 H. & N. 277; Burges v. Wickham, 3 B. & S. 669; 33 L. J. (Q.B.) 17; Clapham v. Langton, 34 L. J. (Q. B.) 46. 7 Foley v. Tabor, 2 F. & F. 662; Biccard v. Shepherd, quà supra; Weir v. Aberdein, 2 B. & Ald. 320. 8 4 H L. Cas. 384. 9 Per Lord Eldon in Douglas v. Scougall, 4 Dow, 276. In a policy on goods. Sub-division of the risk. Weir r. Aberdein. and fully repaired, as the shipbuilder thought, before sailing, but she proved to be unseaworthy from a latent defect (the unsoundness of some timbers near her keel) not discovered during the survey or repair, Lord Mansfield held the underwriter discharged from his liability by the mere fact of unseaworthiness.' This same rule holds good in respect of every voyage policy, whatever may be the subject of insurance. Not that there is any such implied warranty in respect of the cargo, but in respect of the conveying ship; so that the policy on goods is equally conditional as if it were a policy on the ship herself. Thus, in an action brought by an innocent shipper of goods (who had no interest whatever in the ship), on proof being given that the ship was unseaworthy when she sailed, Lord Mansfield nonsuited the plaintiff, saying, that the implied warranty could not be dispensed with in any case; and this is now well understood to be the law of England on the subject.* If indeed the underwriters on discovering the unseaworthiness of a ship that has put back in consequence, agree to waive the objection and allow her to proceed on her voyage a second time (on which occasion she sails seaworthy), they cannot afterwards set up her original unseaworthiness as a defence against any subsequent loss totally unconnected therewith. Under an insurance "on ship and outfit," for a voyage "at and from London to Bahia," the ship sailed from London, and in the Channel, encountered bad weather, and made so much water, that it became evident she was overloaded, and could not continue her voyage in safety unless she were lightened. The master, with the consent of the underwriters, expressed by a memorandum on the policy, unshipped part of the iron 1 Lee v. Beach, 1 Park, Ins. 468. 2 Koebel v. Saunders, 17 C.B., N.S. 3 Oliver v. Cowley, 1 Park, Ins. 470. States, see 1 Phillips, Ins. no. 695. Ed. 5 Quare; see post, next p., note 1.— 6 In these terms, "It is agreed that the ship may load, unload, and reload goods, and discharge part of her cargo at Ramsgate." in Ramsgate harbour, and proceeded on his voyage, in the course of which a loss occurred wholly unconnected with the original state of unseaworthiness of the ship when she first sailed from London, the jury found that the ship was seaworthy for her voyage when she sailed from Ramsgate, and the Court upon this and the other facts of the case, held that the underwriters were liable for the loss.' this warranty. It is enough to satisfy this warranty if the ship be origi- What satisfies nally seaworthy for the voyage insured when she sails on it. There is no implied warranty that the ship shall continue seaworthy in the course of it. "Every ship," says Lord Mansfield, "must be seaworthy when she first sails on the voyage insured, but she need not continue so throughout the voyage." 2 On this ground it has been frequently held that under a As to hull. policy on a voyage out and home, the risk being entire and indivisible, it is sufficient if the ship be seaworthy for the entire voyage when she first sails from the home port of loading; and there is no breach if she be not in a seaworthy 1 Weir v. Aberdein, 2 B. & Ald. 320. I am not aware that this decision has ever been questioned, or that it is open to doubt; but the ground on which it is rested by the Court is not very obvious, nor do I think that the language attributed to the Court is always in accord with the principles of law. I wish to compare this case in its facts with that of Biccard v. Shepherd, 14 Moo. P. C. 471, where the insurance being on goods for Swansea, to be shipped at Hondeklip Bay, and Port Nolloth, the vessel took in part at the first place and overloaded at the second, so as therefore to be unseaworthy, and a total loss happened,-the Court distinguished between the risk from the former and the risk from the latter, and held the assured entitled to recover for the goods on board under the first. I infer that the memorandum in Weir v. Aberdein had the effect of distinguishing between the 2 In Bermon v. Woodbridge, 2 Dougl. |
