her voyage from N. to S. Held, that the insured was entitled to recover on his policy in respect of the ore shipped at H., but not in respect of that shipped at N., the policy being deemed to cover two risks and the sea voyage to begin at different times (n). 6. A ship insured from Liverpool to Sierra Leone arrived off the river Sierra Leone about three o'clock in the afternoon. There was a regular establishment of pilots there, and the captain hoisted a signal for one. About ten o'clock in the evening, no pilot having come on board, the ship tried to enter the river without a pilot, but took the ground and was lost. Held, that the underwriters were liable, and would have been so even had the captain been wrong in attempting to enter the river without a pilot, he being competent, having exercised his discretion bona fide, and having used reasonable diligence to obtain a pilot (o). 7. A policy was effected on an old ship "at and from Honduras to London." The ship sailed on her voyage, but a few days afterwards without any adequate cause became so leaky as to force the master to return. During the return voyage the ship struck on a reef of rocks and was lost. Held, that the ship was not seaworthy at the commencement of the risk (p). 8. A cargo of rice was insured on board a ship, which began suddenly to leak, and sank while at her anchors in port in fine weather. In an action on the policy, evidence was adduced on the part of the assured, with the object of showing that the ship was seaworthy, to the effect that the ship had not long before been put in good repair; that she had been surveyed just previously; and that she had behaved well on previous voyages and on her voyage to the port where she was lost. The actual cause of her loss was in no way established, though some of the witnesses suggested possible explanations of it. Held, that there was evidence of a loss by the perils insured against (9). 9. A time policy was effected in London on the 27th November, 1843, on a vessel then abroad, "lost or not lost, in port and at sea . during the period of twelve calendar months commencing on the 25th September, 1843, and ending on the 24th September, 1844, both days included." On the 24th of September, 1843, the ship was at sea, seriously damaged. In that condition she succeeded in reaching Madras on the following day. Held, (n) Biccard v. Shepherd, 14 Moore, P. C. 471. (0) Phillips v. Headlam, 2 B. & Ad. 380. (p) Watson v. Clark, 1 Dow, H. L. Cas. 336. (a) Anderson v. Morice, 1 App. Cas. 713; 46 L. J., C. P. 11; 35 L. T. 566; 25 W. R. 14. that the underwriters were liable, there being no implied condition that the ship was seaworthy on the 25th of September, the day when the policy was intended to attach (r). $ 168. ordinary care. A warranty that the insured will use ordinary care to Implied warprotect the vessel against the risks insured against, in addi- ranty as to tion to the two warranties of seaworthiness, and that the vessel will not deviate, is implied in every marine policy. From this it follows that the insured cannot claim from the underwriters compensation for any losses caused by his own negligence (s). If, therefore, through the negligence of the insured, the crew barratrously carry on board. smuggled goods, the underwriters will not be liable for a confiscation of the ship consequent thereon (f). The mere fact of the goods lost having been stowed on the deck will not exempt the underwriters from their liability; but they must prove such lading to be under the circumstances improper (u). Violation of a mere ex parte regulation of a foreign state will not avoid a policy (x). But a violation of a rule of the law of nations will. tion. The owner must see that the vessel has the proper docu- Warranty of ments on board, viz. such as may be required by the documentagovernment of the state to which she belongs. Where 1. Implied. the warranty of documentation is infringed by the vessel carrying simulated papers, the underwriters, unless they sanctioned the ship carrying the simulated papers, will be discharged. The ship must, however, be condemned by a foreign prize court, having jurisdiction, for carrying the false papers, otherwise the liability of the underwriters will not have determined (y). In the case of an insurance on goods, no warranty of (r) Small v. Gibson, 4 H. of L. Cas. 353. (*) Pipon v. Cope, 1 Camp. 434; Law v. Hollingsworth, 7 T. R. 160; Bell v. Carstairs, 14 East, 374. (t) Pipon v. Cope, 1 Camp. 434. (u) Milward v. Hibbert, 3 Q. B. 120. (x) Nonnen v. Reid, 16 East, 176. (y) Oswell v. Vigne, 15 East, 70; Flindt v. Scott, 5 Taunt. 674. 2. Express. documentation is implied (2). Therefore, supposing goods are insured on board a certain ship generally by her name, but without the ship being represented as belonging to any particular country at the time the policy is subscribed, the goods need not be documented; and if they be captured by a foreign state for want of being documented, the underwriters will be liable in respect of the loss caused thereby (a). The mere fact of the broker when initialing the slip stating that the ship belonged to a particular state, will not affect the rule (b). When the goods, however, belong to the owner of the ship conveying them (c), the rule will not apply; but in such cases a warranty of documentation will be implied in respect of the goods. If the vessel's national character be expressly warranted, the underwriters will be freed from all liability, if the ship had not her proper documents on board when she set sail (d). But where no such express warranty has been inserted in the policy, and the implied warranty alone exists, the underwriters will not be discharged from their liability, unless a loss occur in consequence of the proper documents not being carried by the vessel (e). CASE. A policy of insurance effected during a war between England and France on a ship from London to Guernsey and thence to Africa, contained a warranty that the ship was American. During the voyage the ship was captured by a French privateer. The ship carried no passport, as was required by the treaties then in force between France and the United States. Held, that the warranty was not complied with, and that the insured could not recover on his policy, even although the want of the passport did not in the least affect the ship's voyage (ƒ). (2) Dawson v. Atty, 7 East, 367; (c) Bell v. Carstairs, 14 East, 374; (d) Rich v. Parker, 7 T. R. 705; see "Case" at end of this §. (e) Bell v. Carstairs, 14 East, 374, 393, per Ellenborough, C. J. (f) Rich v. Parker, 7 T. R. 705. CHAPTER VIII. MISREPRESENTATION AND CONCEALMENT. § 169. ANY fraud, misrepresentation, or concealment of any mate- Effect of misrepresentation rial fact on the part of the insured, will avoid the policy on a policy. ab initio. In other words, in all contracts of insurance there must be the strictest bona fides (a). As the policy will in such a case be avoided ab initio, the underwriter may protect himself under the plea of fraud, misrepresentation, or concealment, although the loss was occasioned by something wholly unconnected with the fact fraudulently misrepresented or concealed. A material fact is one influencing the underwriter to effect the policy or inducing him to fix the premium at the sum at which he did fix it (b). Any misrepresentation of such a fact will vitiate a policy, though the misrepresentation was not such as to affect the nature of the risk (b). A misrepresentation of a material fact will avoid the contract, whether the insured stated as true a thing he knew to be false, or a thing he did not know to be true (c), or whether he stated it bonâ fide under a mistake (d). Therefore if the insured represent, however bonâ fide and innocently, that a ship is new when she is in fact old, such a representation will vitiate any policy of insurance at end of this §; Rivaz v. Gerussi, (a) Carter v. Boehm, 3 Burr. 1905; Middlewood v. Blakes, 7 T. R. 162; see "Cases" (1) at end of this §; Rivaz v. Gerussi, 6 Q. B. D. 222 (C. A.); 50 L. J., Q. B. 176; 44 L. T. 79. (b) Sibbald v. Hill, 2 Dow's H. L. Cas. 263; Kirby v. Smith, 1 B. & Ald. 672; see "Cases" (2) and (3) supra. (c) Macdowall v. Fraser, 1 Doug. 260; see "Cases" (4) at end of this; Duffell v. Wilson, 1 Camp. 401; Behn-v. Burness, 3 B. & S. 751 (S. C.). (d) Ionides v. The Pacific F. & M. Ins. Co., L. R., 6 Q. B. 674. effected by him on goods on board her. For the age of the ship must be an essential element in fixing the premium (d). Whether the misrepresentation be made by the insured himself or by his broker, will be immaterial (e). In cases in which moral fraud cannot be imputed, a representation, though false, will not avoid the policy, unless the representation is material. A misrepresentation to the underwriter whose name. stands first on the policy or slip of a material fact will be a misrepresentation to all the underwriters (f), provided that the misrepresentation tended to induce the underwriters to take a lower premium. But a misrepresentation made to any underwriter but the first, will not be a misrepresentation to all (g). Though a representation be not literally correct, yet, if it be substantially true, it will not avoid the policy (h). Therein a representation differs from a warranty inserted in a marine policy; for the latter must be literally and strictly complied with. Where an underwriter subscribes a policy with a secret understanding that it is not to bind him, but its object merely is to induce other underwriters to insure the same vessel or goods, the policy will be void (i). Supposing that in spite of a representation entirely opposed to the terms of the policy, the underwriter signs the policy, he cannot afterwards plead the misrepresentation as a defence to an action by the insured on the policy (j). The insured may withdraw a representation whether made by himself or his broker, at any time before the policy of insurance is actually effected (%). (d) Ionides v. The Pacific F. & M. Ins. Co., L. R., 6 Q. B. 674. 12. (e) Fitzherbert v. Mather, 1 T. R. (f) Pawson v. Watson, 2 Cowp. 785; Marsden v. Reid, 3 East, 572. (g) Bell v. Carstairs, 2 Camp. 543; Brine v. Featherstone, 4 Taunt. $69. (h) Pawson v. Watson, 2 Cowp. 785; Nonnen v. Reid, 16 East, 176; Von Tungeln v. Dubois, 2 Camp. 151. (i) Whittingham v. Thornburgh, 2 Vernon, 206; Wilson v. Ducket, 3 Burr. 1361. (j) Bize v. Fletcher, 1 Doug. 284. (K) Carter v. Boehm, 3 Burr. 1905; Edwards v. Footner, 1 Camp. |