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WARRANTIES-EXPRESS AND IMPLIED.
$ 160. A marine policy usually contains five express warranties. In addition thereto three other warranties will be implied.
A warranty in a policy is a condition or contingency, and unless it be performed there is no contract (a). The purpose for which it was introduced is immaterial. It must, in the absence of any usage of trade, be strictly and literally complied with, no cause or necessity escusing noncompliance. Therefore, supposing a ship insured is warranted to sail on or before some particular day, the warranty will not be complied with unless it sail on or before that day. If it does not sail on or before the day named, though it be prevented from sailing by that day in consequence of an embargo, the policy will be vitiated (6).
No special words or form of words is necessary to constitute an express warranty. However, no statement can amount to an express warranty unless it be in writing and appear on the face of the policy (c). It is immaterial, however, whether it is inserted in the body or in the margin, or in any other part of the policy (a). Thus, if in the margin of a policy it is stated that the ship will carry a specified crew, that number of men must sail with her as part of her company (“).
Where the words do not form part of the policy, but are written on a separate paper annexed thereto, they will not
(a) As to difference between a warranty and a representation, see Ch. VIII. $ 170, p. 310, post.
(6) Hore v. Whitmore, 2 Cowp. 781.
(c) Bean v. Stupart, 1 Doug. 11.
(d) Kenyon v. Berthon, 1 Dougl. 12, n.; Blackhurst v. Cockell, 3 T. R. 360.
(e) Bean v. Stupart, supra.
constitute an express warranty (f). To this general rule,
the vessel against the risks covered by the
$ 161. Under the warranty of the time of sailing, the ship Warranty of
time of must have actually quitted her moorings and have broken
sailing. ground, and also be ready to sail on the day specified. Therefore the warranty will not be complied with (n) if, at the time of sailing, the complete crew be not on board, the whole cargo be not loaded, or the ship's clearances obtained (i).
If the vessel bonâ fide commence her voyage at the stipulated time, it will be a sufficient compliance with the warranty (k), though she be afterwards detained com
(5) Kenyon v. Berthon, 1 Doug. 12, n.
(9) IVorsley v. Wood, 6 T. R. 710; Routledge v. Burrell, 1 H. Bl. 255.
(h) Ridsdale v. Newnham, 4 Camp.
111; 3 M. & Sel. 466 ; see “Cases"
pulsorily, as by an embargo or the necessity of joining convoy (?). But mere stress of weather will not excuse her delaying to sail (m).
In cases where the warranty is to “ depart” or to “sail from a certain place,” the vessel must not only set sail on the voyage, but also be out of port on or before the stipulated day (»). If the ship set sail on the voyage before the fixed day, but is detained by adverse winds within the harbour till after the day specified in the warranty, the warranty will not be complied with (n). But if the ship actually get out to sea, though only for a short distance, she will be deemed to have sailed within the meaning of the policy, though the ship be then forced to anchor owing to the lowness of the tide or any other cause (o).
CASES. 1. Freight and goods were insured per ship named at and from Portneuf to London, “warranted to sail on or before the 28th of October.” On the 26th of October the ship dropped down from Portneuf with an incomplete crew for the voyage, and on the 28th reached Quebec, which was the nearest port at which she could obtain her clearances. At Quebec the ship completed her crew, and on the 29th of October obtained her clearances, sailing the next day. Held, that the dropping down the St. Lawrence to Quebec on the 26th of October did not amount to a compliance with the warranty (P).
2. A policy was effected on a ship at and from Surinam and all or any of the West India Islands to London. The policy contained a warranty to sail on or before the 1st of August. The ship sailed from Surinam her last port of loading before that day, but on the 4th of August she had to go into Tortola to seek convoy. The
515; 2 Camp. 247 ; see "Cases" (2) at end of this į; Lang v. Anderdon, 3 B. & C. 495.
(1) Bond v. Nutt, 2 Cowp. 601; Cockrane v. Fisher, 1 C. M. & R. 809 (S. C.); and see “Cases" (3) at end of this g.
(m) Nelson v. Salvador, Moo. & Mal. 309; Bouillon v. Lupton, 15
C. B., N. S. 113.
(n) Moir v. R. E. 4. Co., 3 M. & S. 461; 6 Taunt. 241; “ Cases” (4) at end of this §.
(0) Lang v. Anderdon, 3 B. & C. 495.
(p) Ridsdale v. Neunham, 3 M. & S. 456 ; 4 Camp. 111.
ship was subsequently lost on her voyage to London. Held, that the warranty had been complied with, and that the underwriters were liable for the loss (9).
3. In a marine policy a warranty “not to sail for British North America after the 13th of August” was inserted. On the morning of the 15th of August the ship was cleared at the Dublin custom house and was ready for sea. At the time she was lying in the custom house dock, which opens into the river Liffey, which forms part of Dublin Harbour. On the same day, however, the ship was hauled out of dock and warped down the Liffey about half-a-mile towards the mouth of the harbour, which was some miles distant, with the object of proceeding on her voyage to Quebec. At the time of so moving the vessel the master and crew knew it to be impossible to get to sea that day. The next day, having warped a little further down the river, she, on the 17th, when the wind had changed, got to sea. The jury found that the master and crew had intended to sail for Quebec on the 15th of August, and had used every means and exertion to do so, and not solely to fulfil the warranty. Held, that the ship was in the prosecution of her voyage on the 15th of August, and that the warranty had been complied with (r).
4. A ship quite ready for her voyage weighed anchor on the 15th September, the day named in the warranty, intending to sail for her port of discharge. The morning was clear and there was some little prospect of a favourable change of winds and weather. Before the ship had been half-an-hour under weigh the sea breeze came in strong from the westward and obliged her to come to an anchor half-a-mile nearer to the sea than her place of loading and as near the sea as was consistent with her safety. The ship lay there in perfect sea-readiness until the first opportunity which afterwards presented itself for sailing, which was on the 21st September. She then with twenty-two other ships sailed from Memel on their respective voyages, no ship having sailed in the interim. Held, that the ship had not sailed within the meaning of the warranty (s).
$ 162. The safety of the vessel at a particular time is warranted Warranty of in order to restrain the force of the words “ lost or not
ship lost” (t). Then, if the vessel be safe at any moment of
(9) Wright v. Shiffner, 11 East, 515; 2 Camp. 247.
(n) Cockrane v. Fisher, I C. M. & R. 809 (S. C.).
(8) Moir v. Royal Ex. Ass. Co., 6 Taunt. 241 ; 3 M. & S. 461.
(1) As to the effect of these words, see $ 137, p. 233.
the day on which she is warranted well, the warranty will be complied with (u).
Where the ship is warranted to be “in port” on a specified day, the ship must, in the case of a voyage policy, be in the port where, by the terms of the policy, the voyage is to commence, on the day specified. But in the case of a time policy, the warranty will be complied with by her being in any port on that day (r).
CASES. 1. Goods were insured from their being loaded on board a ship, “ lost or not lost ;” and in the policy they were warranted well on a particular day. The policy was underwritten between one and three o'clock in the afternoon, and the ship was lost at 8 o'clock the same morning. Held, that the underwriter was liable (y).
2. A policy on a ship was effected at and from Hamburg to Vigo, on the 26th of October. The policy contained a warranty that the ship was in port on the 19th of October. On that day, the ship was, as a matter of fact, in Cuxhaven, which is situated about ninety miles below Hamburg, on the Elbe, and without the limits of the port of Hamburg. Held, that the warranty had not been complied with (z).
S 163. The warranty that the ship shall leave port with a convoy is usually inserted when a war is being carried on by the state to which she belongs. The convoy must consist of a naval force under the orders of some individual appointed by the government of that state. The appointment of its commander by the government is material, for a war vessel by mere chance going on the same voyage as the vessel insured will not be a sufficient convoy within the warranty (a).
The vessel must keep with the convoy during the whole voyage, except when rendered impossible in consequence of
Warranty of convoy.