a storm or some other inevitable occurrence (b). For if the separation of the ship from the convoy be originally caused by a tempest, then, though the ship and convoy do not again meet, the underwriters will be liable in the event of the ship being captured (c). To comply with the warranty to depart with convoy, the master must take his sailing instructions from the commander of the convoy before the ship leaves the place of rendezvous, unless the master, even by the exercise of due diligence, could not then obtain the instructions (d). § 164. The warranty that the property is neutral is also usually Warranty of inserted during war, in addition to the warranty of convoy. neutrality. The warranty of neutrality only refers to the neutrality of the vessel when the risk commences, and does not necessitate the vessel continuing neutral during the voyage (e). In order to comply with the warranty the ship must belong to the subject or subjects of a neutral state, and be documented as a neutral. In addition thereto, the ship must be navigated in accordance with the rules of International Law and with the treaties entered into between the state to which she belongs and the belligerents (f). Therefore, if, when a ship is being carried into port by a belligerent for the purposes of search, the master and crew forcibly rescue the ship, such an act will be a breach of a warranty of neutrality (g). The want of the proper documents on board will not, however, free the underwriter from his liability on the policy unless the ship be actually condemned by a foreign court having jurisdiction in questions of prize, and the condemnation be on account of the absence of the documents (h). (b) Jeffery v. Legender, 3 Lev. 320. (c) Ibid. (d) Anderson v. Pitcher, 2 B. & P. 164. (e) Eden v. Parkinson, 2 Doug. 732, a; Tyson v. Gurney, 3 T. R.477. (f) Garrels v. Kensington, 8 T. R. N. 230; Rich v. Parker, 7 T. R. 705; (g) Garrels v. Kensington, 8 T. R. (h) Per Lawrence, J., Price v. U Documents of The following are the principal documents as to neuneutrality. trality, required to be on board a ship insured :— Carrying hos- Contraband. (1) The flag; (2) The passport, sea letter, pass or brief, i. e., a certificate granted by the neutral state, authorizing the voyage and declaring the ship to be under the protection of the neutral state (i); (3) The register or certificate of registry; (4) The ship's articles or muster-roll, which should contain, inter alia, the name and place of birth of every member of the ship's company; (5) The charterparty, if any; (6) The log-book; (7) Bills of lading, invoices, &c. as showing the neutral character of the cargo; Carrying simulated papers (j), or hostile troops, officers (/) and despatches (7), or contraband goods, will be a breach of the warranty of neutrality. The despatches of the ambassador of one of the belligerents in the neutral state to his government are not hostile despatches within this rule (m). The warranty of neutrality will not be broken so as to discharge the underwriters from liability in cases where they have sanctioned the carrying of simulated papers (»). It is impossible to lay down with accuracy what goods or classes of goods will fall under the head of contraband goods. The general rule is that any article which can be directly used for the purposes of war will be held contraband. The term will, therefore, include not only arms, ammunition, &c., but also iron, tar, sailcloth, hemp and other materials used for the construction and equipment of vessels of war (o). It is the usus bellici, which alone will decide Bell, 1 East, 663, 673; Bell v. Car- (i) Rich v. Parker, 7 T. R. 705. (k) The Friendship, 6 Rob. 420; The Orozembo, 6 Rob. 430; and see whether a specific article is contraband or not. Even provisions have been held, in certain cases, contraband of war; for instance, where there is a prospect of the enemy being reduced by famine (p). on hostile ships. Shipping on board a hostile ship, not an armed ship, Neutral goods goods warranted neutral, will not per se be a breach of the warranty; for by the declaration entered into by the signatories to the Treaty of Paris, 1856, neutral goods on hostile ships are not now liable to be captured and confiscated. However, a neutral may not ship his goods in a hostile armed vessel (g); nor ship contraband on any hostile ship. Resistance of the right of search, either by the ship Right of herself, or by her convoy, when such right is being legally exercised, will render both the ship and her cargo liable to confiscation (). Attempting to rescue a vessel which is being conducted into port for examination as to the nationality of the property or for adjudication, will have the same effect. The right of search can only be exercised— (1) By belligerent ships of war or privateers; (3) During the continuance of the war; and (4) According to the rules of international law (s). search. court conclu The sentence of a foreign court having jurisdiction in Judgment of questions of prize, that the vessel is lawful prize, will be a foreign prize conclusive evidence in actions on policies of insurance that the warranty of neutrality has been broken; provided that the basis of the judgment falsify the warranty (†). lotte, 5 Rob. 305; The Twende Brodre, 4 Rob. 33; The Evert, ib. 354. (p) Grotius, De Jure Belli et Pacis, bk. iii. ch. i. § 5. Grotius, in treating of provisions, says that they are usus ancipitis; and see Vattel, Droit des Gens. bk. iii. ch. vii. 112; Bynkershoek, Quæst. Jur. Pub. bk. i. ch. x.; Wheaton and other writers on International Law; The Jonge Margaretha, 1 Rob. 189. (a) The Fanny, 1 Dods. 443; but (r) The Maria, 1 Rob. 340. (t) Baring v. Claggett, 3 B. & P. 230. sive. Warranty of freedom from seizure. CASES. 1. Immediately on the arrival of a ship at Riga her papers were seized and her hatches sealed down by order of the Russian government, and so kept while her papers were sent to St. Petersburgh for examination. The ship was subsequently condemned for carrying simulated papers. The ship had no leave to carry simulated papers, but without such she would certainly have been seized and condemned as coming from an enemy's country. Held, that although the ship had not been moored twenty-four hours in good safety within the meaning of those words in the policy, the underwriters were not liable (r), they not having sanctioned the carrying of the simulated papers. 2. Under a treaty made between France and the United States, the vessels of either state, when at war, were required to carry a passport, expressing, inter alia, the place of habitation of the master of the vessel. A passport granted leave to "G. D., commander of the ship called the M., of the town of P., of the burthen of ‚” to make a certain voyage. The M. was insured, being warranted American, and was captured by the French and condemned as prize. Held, that the provision of the treaty had not been complied with, as the description of place was only applicable to the ship; and that, therefore, an insured could not recover on the policy (8). $165. The warranty of freedom from seizure or capture in her port of discharge will free the underwriters from any liability in the event of confiscation, seizure, or capture of the ship in the port of discharge. The fact that the persons, who seized the vessel, merely intended to plunder the cargo and not to keep the ship, will be immaterial. For an intention to keep the ship is not necessary to constitute seizure (t). In cases where the vessel does not happen to be within. the harbour or within that part of it where ships usually unload when she is seized, the underwriter will not be exempted from liability by virtue of this warranty (u). CASE. A vessel destined to unload her cargo at Pillau anchored two German miles distant from that port, and three English miles outside the roadstead. Vessels usually discharged their cargoes in the (r) Horneyer v. Lushington, 15 (s) Baring v. Christie, 5 East, 398. 432. (u) Keyser v. Scott, 4 Taunt. 660; Levy v. Vaughan, ib. 387; see "Case" at end of this §. roadstead, in order to enable them to come over the bar into the inner harbour. The vessel in question was captured while at her moorings by soldiers who came from Pillau by boat. Held, that the loss was not within the warranty, and that the underwriters were, therefore, liable for the loss of the ship (v). § 166. deviation. A warranty that the vessel shall not deviate from the Implied warproper course of the voyage insured is always implied in ranty against marine insurance. Such a deviation, whether or not the insured consented thereto, will discharge the underwriter from any liability for a loss occurring after the deviation, though such loss be in no way caused by or connected with the deviation (a). But he will not be discharged in respect of a loss occurring before the deviation (y). For a deviation will not avoid a marine policy ab initio. Any wilful and unnecessary departure whatever from the proper track of the voyage is sufficient to constitute a deviation. Thus, going into a port for a purpose unconnected with the voyage will be a deviation (3). Further, any unnecessary or unreasonable delay, whether Delay. in commencing or prosecuting the voyage insured, will in effect amount to a deviation, and discharge the underwriter for any liability on account of a loss, subsequent to such delay (a). This will be the rule, though the vessel insured belonged to a class which do not go to sea during the period of the delay (b). If the delay be absolutely necessary in consequence of an embargo, or to further the adventure, for instance, to repair the ship, the underwriters will not be discharged (c). Again, in the case of a policy on a seeking ship, a detention for a reasonable time (v) Levy v. Vaughan, 4 Taunt. 387. (x) Elliott v. Wilson, 4 Brown's Parl. Cas. 470. (y) Green v. Young, 2 Raym. 840. (-) Hammond v. Reid, 4 B. & Ald. 72; Solly v. Whitmore, 5 B. & Ald. 45; see 'Cases" (1) and (2) at end of this §; for a definition of deviation, see Ch. III. § 142, p. 240. (b) Palmer v. Marshall, 8 Bing. (c) Smith v. Surridge, 4 Esp. 25; Grant v. King, ib. 174; Shroder v. Thompson, 7 Taunt. 462; see "Cases" (5) at end of this §. |