11. A ship insured to Martinique and all or any of the Windward and Leeward Islands, landed the greater part of her cargo at Martinique, sailing with the remainder to Antigua. She was there wrecked while stopping with the object partly of disposing of the remainder of the outward cargo, and partly of obtaining a homeward cargo. Held, that the underwriters were not liable; the captain having no right to mix up together the two objects of disposing of the outward cargo and procuring a homeward cargo at the risk of the underwriters on the outward voyage (7). 12. A ship sailed on her outward voyage from Liverpool to Cuba with a crew of thirteen men. On her reaching Cuba three had died and two deserted while there. The master could only procure eight men for the entire homeward voyage, though he obtained two others for Jamaica. A competent crew for the vessel had to consist of at least ten men. The master touched at Jamaica for the sole purpose of landing the two men and procuring substitutes, which he succeeded in doing. The ship was lost by the perils of the sea while on her voyage from Jamaica to Liverpool. Held, that the touching at Jamaica was a deviation, and that the insured could not recover on his policy, as a competent crew should have been provided before sailing from Cuba (r). § 167. A warranty that the ship insured is in a seaworthy condition at the commencement of the voyage will be implied in all policies of marine insurance, when the ship has been insured from a port. In cases where the vessel has been insured at and from a port, a further warranty that she was seaworthy when at the port will be implied (s). The implied warranty of seaworthiness will not be excluded, by loss from unseaworthiness being excepted in the policy, unless the policy expressly specify an intention to exclude the warranty (t). The term "seaworthy" has to be interpreted according to the situation of the ship. Thus, if the ship be in port, it means that she is in a condition to be reasonably free from (2) Per Lord Ellenborough, C. J., Inglis v. Vaux, 3 Camp. 437. (r) Forshaw v. Chabert, 6 J. B. Moore, 369. (s) Small v. Gibson, 16 Q. B. 128, 156, per Parke, B.; 4 H. L. Cas. 353. (t) Quebec Mar. Ins. Co. v. Com. Bank of Canada, L. R., 3 P. C. 234; see "Cases" (1) at end of this §. Implied warworthiness. ranty of sea Different worthiness. danger while there, though she may be in want of repairs (u). Again, as a full complement of men is not requisite to a ship while in a harbour, a ship will not cease to be seaworthy in consequence of not having a full crew on board until she sails on her voyage without her proper complement (u). A ship to be seaworthy must be, at the commencement of the voyage, staunch, strong, and properly equipped and manned by a master of competent nautical knowledge and skill, and a sufficient crew. It is absolutely necessary, not only that the hull be tight, staunch and strong, but that the ship be furnished with ground tackling sufficient for the ordinary sea perils (r). Where, therefore, the anchors or cables are defective the vessel will not be deemed to be seaworthy. Again, for the implied warranty of seaworthiness to be complied with in time of war, a sailing ship must carry sufficient sail to keep up with her convoy (w). A vessel insured must also have on board a pilot, if one be necessary under the express provisions of any Act of Parliament (r), though she need not in other cases (y). There may be different stages of seaworthiness in cases stages of sea- where the different stages of navigation involve the necessity of a different equipment or state of seaworthiness. The ship, however, must be properly equipped, and in all respects seaworthy, for each of the stages respectively at the time when she enters on each stage. Should this not be the case, the warranty of seaworthiness will not be complied with (2), and the underwriters will be released from liability in respect of any loss, even though, before the loss occur, the defect has been remedied (≈). (u) Annen v. Woodman, 3 Taunt. 299; Bouillon v. Lupton, 33 L. J., C. P. 37; see "Cases" (2) at end of this §. (v) Wilkie v. Geddes, 3 Dow, H. L. Cas. 57. (w) Wedderburn v. Bell, 1 Camp. 1. (x) Wedderburn v. Bell, 1 Camp. 1; Wilkie v. Geddes, 3 Dow, 57; Shore v. Bentall, 7 B. & C. 798, n. ; Forshaw v. Chabert, 3 Br. & B. ness-not im There is no implied warranty that the ship shall con- Continuation tinue seaworthy during the voyage, it being sufficient if of seaworthishe be seaworthy at the commencement of the risk (a); plied. and, consequently, in the case of a policy on a voyage out and home, it will be sufficient if the ship be seaworthy on leaving her home port of loading; for the risk is entire and cannot be divided (b). admission of ness. In cases where the policy, by one of its clauses, admits Estoppel by that the ship was seaworthy at the commencement of the seaworthirisk, the admission, unless obtained by fraud on the part of the insured, will estop the underwriters from setting up the contrary as a defence to an action on the policy (c). ness-when If a ship, soon after commencing her voyage, founders Unseaworthior becomes incapable of continuing the prosecution of her presumed. voyage, without any cause sufficient to account for it appearing, the ship will be presumed to have been unseaworthy when she started (d). But if the loss can be attributed to some sufficient cause, e. g., a violent tempest, the underwriter will, if he sets up unseaworthiness as a defence, have to prove that the vessel was unseaworthy when she sailed, and the onus, in such a case, will not be on the assured (e). When a vessel built for inland navigation is insured for an ocean voyage, there is an implied warranty that she shall be made as seaworthy for the voyage as a vessel of her character can be made by ordinary available means (ƒ). In a time policy, as it is generally effected when the vessel is at sea, or in a position in which the owner cannot (a) Biccard v. Shepherd, 14 Moore, P. C. C. 471; see "Cases" (5) at end of this §. (b) Ibid.; Bermon v. Woodbridge, 2 Doug. 781; Dixon v. Sadler, 5 M. & W. 405, 414, and cases there cited. (e) Parfitt v. Thompson, 13 M. & W. 392. (d) Watson v. Clark, 1 Dow, 336, 344, per Lord Eldon; Anderson v. Morice, 1 App. Cas. 713; 46 L. J., (e) Watson v. Clark, 1 Dow, 336, (f) Turnbull v. Janson, 36 L. T., N. S. 635 (C. A.); see "Cases" (4) at end of this §. Seaworthiness not implied in case of a time policy. know her state, no warranty of seaworthiness is implied by the law (). In order to guard himself against liability in respect of a loss arising out of the unseaworthy condition of the ship insured, it will therefore be necessary for the underwriter to insert a clause to that effect in the policy. A time policy is a policy by which a ship is insured for a certain period, instead of for a certain voyage. Even though at the date when a time policy is effected the ship, being an outward-bound ship and chartered for a foreign port, is lying in a British port, where the owner resides, no warranty of seaworthiness will be implied in such policy (). Further, if the owner improperly sends the ship loaded to sea at a time when it is dangerous to go to sea in the condition in which she then is, the underwriters will be liable unless the owner know of the unseaworthiness (i). But where the owner anchors his ship, when in such a condition, near the seashore, for a long period without a master or a competent crew, and the ship is wrecked, the underwriters will not be liable (¿). CASES. 1. A steamship was insured at and from Montreal to Halifax, in Nova Scotia. By the express terms of the policy the underwriters were excepted from liability (inter alia) in respect of "rottenness, inherent defects and other unseaworthiness, . . . .; bursting or explosion of boilers, or collapsing of flues, or breakage of machinery, unless occasioned by unavoidable external cause, or fire ensue therefrom. . . .” At the time of the ship starting from Montreal there actually existed a defect in her boiler. The defect in question was not apparent in rivers, but when the vessel got into salt water she became disabled by reason of such defect, and was forced to put into port to repair. After the repairs were executed, and a detention of some days in consequence of the lowness of the tides, the ship proceeded to sea, and, encountering bad weather, she stranded and became a total wreck. Held (1) that the enumeration of the Ex. 409; 25 W. R. 499. (g) Small v. Gibson, 4 H. L. Ca. 353; see "Cases" (9) at end of this §; Michael v. Tredwin, 17 C. B. 551; Jenkins v. Heycock, 8 Moore, P. C. C. 351; Dudgeon v. Pembroke, 2 App. Cas. 284; 46 L. J., (h) Thompson v. Hopper, 6 E. & B. 172; Fawcus v. Sarsfield, ib. 192. (i) Ibid. excepted risks did not exclude the implied warranty of seaworthiness, no intention to exclude it being expressed; and (2) that as the vessel sailed with a defect of such a nature as to be rendered, so long as it lasted, unseaworthy for the stage of the voyage she entered upon, the policy was avoided, even though the defect was before the loss repaired (j). 2. A policy was effected on a ship from Lyons to Galatz, warranted to sail on or before the 15th of August. Before that day the vessel left Lyons properly equipped for the river voyage, but carrying only a river captain and crew, and without her masts, anchors and other tackle requisite for her sea voyage. In similar adventures, it was usual to embark the masts and other tackle requisite for the sea voyage at Marseilles. Further, the ship could not possibly have made the river voyage with her masts up and her heavy tackle on board. The necessary masts and tackle were taken on board at Marseilles without any unreasonable delay, but the vessel did not proceed to sea till the 23rd of August. Held, considering the nature of the voyage and the custom of trade, both the implied warranty of seaworthiness, and the express warranty to sail by a certain day, had been complied with (k). 3. The master of a ship, insured on a voyage up the Mediterranean on the Spanish coast as far as Tarragona, through not being acquainted with that coast, went into Barcelona, an enemy's port, which is situate farther up the coast than Tarragona. Held, that there was a failure of the implied warranty that a master of competent skill and knowledge for the voyage should be provided, and that therefore the underwriters were not liable (7). 4. A vessel of light construction, built for inland navigation in Trinidad, was insured for the voyage out. During the voyage she broke in two and sank. In an action on the policy the jury found that the vessel was not seaworthy as an ocean-going vessel, and was not as seaworthy as she might have been made by ordinary means. Held, the underwriter was not liable on the policy (m). 5. A policy was effected on copper ore on board a ship "at and from the anchorage of H. and N. to S., to commence upon the loading on board the ship at and from the above ports." Part of the ore was loaded at H. and the remainder at N. While at H. the ship was perfectly seaworthy, but before leaving N. became unseaworthy in consequence of being overloaded, and was lost on (j) Quebec Mar. Ins. Co. v. Com. Bank of Canada, L. R., 3 P. C. 234. (k) Bouillon v. Lupton, 33 L. J., C. P. 37. (1) Tait v. Levi, 14 East, 481. (m) Turnbull v. Janson, 36 L. T., N. S. 635 (C. A.). |