XI. Thip, faying the would come home fafe enough, notwith CHA P. ftanding the damage which the faid letter imported she had received, as it was a fummer voyage; but that she would very likely damage her cargo: that the faid George Hayley was going to underwrite the faid policy for 3007. on the said ship, and had wrote the figure 3; but on the faid Matthew Towgood's telling him, he was a bold man to write three hundred [228] pounds after reading the faid letter, the faid George Hayley ftruck out the figure 3, and converted it into a 2, and accord ingly underwrote the faid policy for the fum of two hundred pounds on the said ship: that the faid Matthew Towgood thewed the faid letter to the faid defendant Roebuck, and all the other underwriters on the faid policy, before they underwrote the fame; and the said defendant Tays, that the evidence aforefaid, in manner and form aforefaid, fhewn by the plaintiffs to the jury, is not fufficient in law to maintain the iffue within joined on the part of the faid plaintiffs; and that he the defendant to the evidence aforesaid hath no neceffity, nor by the law of the land is obliged to answer. Wherefore he prays judgment, and that the jury may be discharged from giving any verdict upon the iffue. The plaintiffs join in demurrer. Upon this demurrer, judgment was given in the Court of Exchequer for the underwriter. A writ of error was then brought in the Court of Exchequer Chamber, which was referred to Lord Mansfield and Lord Chief Juftice Wilmot, who, after argument, alfo reported their opinions to be in favour of the defendants; agreeable to which report, judg ment was accordingly pronounced. This is the only account, which can now be given of this cafe, as the report upon these occasions is generally made in private, and the reafons, upon which it is founded, are not publickly given. But from the above very accurate statement which has been procured from the record, it will appear, that the decifion did not turn upon any fraud or concealment of circumftances; but, on the contrary, every thing was done in the most fair and honourable manner, and the underwriter was fully informed of every event, with which the infured was himfelf acquainted. The cafe was decided entirely upon the principle of fea-worthinefs: that however innocent or un fortunate XI. CHAP, fortunate the infured might be, yet if the fhip was not fea worthy, at the time of insuring, there was no contract at all between the parties; because the very foundation of the contract, the fhip, was in the fame condition as if it did not exift. That the conclufion thus drawn from the judgment given in the Exchequer Chamber, is not larger or more ex[229] tenfive than the decifion will warrant, is evident from what $ Bur. 2802. was faid by Lord Mansfield, when, upon a fubfequent occafion the cafe of the Mills Frigate was relied upon in argument at the bar In the cafe of the Earl of March v. Pigot, which came be fore the court of King's Bench in the year 1771, the cafe of the Mills Frigate having been mentioned, Lord Mansfield faid, "The infured ought to know whether his ship was fea worthy or not, at the time fhe fet out upon her voyage; but how fhould he know the condition fhe was in after fhe had been out a twelvemonth? It is true the propofition laid down by the counsel in that cafe is merely, "that the cafe of the "Mills Frigate was an insurance upon a ship, which had a "latent defect totally unknown to the parties; and the in"furers were holden not liable on account of the ship's not "being fea-worthy, though fuch defect was not known." Lord Mansfield is then reported to have faid, "I differ totally in opinion from that doctrine;" and yet his Lordship is made to conclude with the fentence above stated, which is in effect the fame with that which the reporter has put into the mouth of the counfel; and which in truth contains the whole doctrine of fea-worthinefs, when the exception put by Lord Mansfield is added, namely, that the insured fhall not answer for the fufficiency of the ship, after she has been out a confiderable time. The probability is, that the counsel laid down the propofition in more extenfive terms than the reporter ftates it, namely, that if the fhip was not fea-worthy at any time during the voyage, the infurers would be difcharged. By admitting this prefumption, the whole will be easily reconciled; for then Lord Mansfield's denial of fuch extenfive doctrine is fupported and illuftrated by the diftinction, which he afterwards takes in the conclufion of the fentence. XI. It is fingular, that the decifion, which has occupied the CHAP. whole of this chapter, should have occafioned fo much difcuffion at the time it was determined, as that pamphlets were written upon both fides of the question; especially when it is confidered, that the doctrine there established is by no means novel in itself, and is entirely confonant to the laws of all the maritime and commercial nations in Europe. The fea-worthiness of the fhip being thus fhewn to be an [229] implied condition in this species of contract, it follows of course, that, in entering into the engagement, it is not neceffary that there should be any previous reprefentation of the condition of the fhip; because, unlefs it be fit for the performance of the voyage infured, there is no binding contract; and any infufficiency of the veffel in a former voyage will not vacate the policy. Shoolbred v. Thus in an action upon a valued policy of infurance upon Nutt, Sittings the thip Two Sisters, and a cargo of wheat and wines, from at Guildhall afMadeira to Charlestown. The fhip had failed from London to ter Hil. 1783. Madeira. The plaintiff, who was owner of the cargo, ordered his broker to procure an infurance from Madeira for the voyage to Charleflown, which was accordingly done; but, he did not communicate to his broker or the underwriters, two letters which he had received from his captain the day before he effected the infurance, ftating, that the ship had arrived at Madeira, but was very leaky, and that the pipes of wine had been half covered with water. But it was proved at the trial, that the leak had been completely stopped before fhe failed from Madeira, and of course before the commencement of the risk infured. In her voyage to Charleflown the was taken, and the plaintiff abandoned. Lord Mansfield told the jury, "that there fhould be a rep refentation of every thing relating to the risk, which the underwriter has to run, except it be covered by a warranty. It is a condition, or implied warranty, in every policy, that the fhip is fea-worthy; and therefore there need be no reprefentation of that. If the fail without being fo, there is no valid policy. Here the leak was stopped before the failed from Madeira, and the failed in good condition from there Y and XI. CHA P. and there is no occafion to state the condition of a ship or car go at the end of her former voyage." There was a verdict for the plaintiff. Ord. of Lewis art. 12. 2 Val. 80. C. 5. art. 8. 2 Val. 81. In the ordinances of Lewis the fourteenth it is declared, 14th, tit. Infur. that decay, wafte, or lofs, which happens from the internal defect of the thing infured, fhall not fall upon the underwrit er. A commentator upon these ordinances has gone into the reafon and principle of fuch a regulation, and has fhewn the propriety of it. He fets out by obferving, that this doctrine is of a date as ancient as the period when the French treatise called Le Guidon was publifhed, which was about the year 1661, at which time, as appears by a reference to the book itself, it was confidered as a fettled principle, that loffes, happening from causes of this nature, were not to be a charge 2 Mag. 90. 140. upon the underwriter. The fame author has also fhewn, that fuch a provision is adopted in favour of the infurers by the ordinances of Rotterdam and Amfterdam. After ftating these circumstances, he proceeds to fay, that when a fhip is deemed incapable of finishing her voyage, the question whether this event is a charge upon the underwriters or not, depends upon another; namely, whether it happened by the violence of the fea, or other fortuitous circumftance, or whether the difability proceeds from age and rottennefs. This will be determined by the inquiry which was made before the departure of the hip, in order to judge, whether it was in a condition to perform the voyage or not: if the latter was the cafe, the infurers ought not to answer. In another part of this work, after laying down the fame doctrine, he declares, that the indemnity will be void, even though the ship has been examined before her departure, and declared capa ble of performing the voyage; fince the event has fhewn clearly, that on account of latent defects it was no longer navigable; that is, if it were proved that parts of the fhip were so rotten, weakened and destroyed, that she was not in a proper state to refift the ordinary attacks of wind and sea, inevitable in every voyage, then the underwriters are difcharged. The reafon is, that the examination of the ship before her departure extends only to the external parts, because she is not unripped; at least not fo as to discover the inte rior and latent defects, for which the owner or master of the fhip continues always refponfible, and that with the greater juftice, because they cannot be wholly ignorant of the bad 1 Val. 654. ftate ftate of the ship but fuppofing them to be so, it is the fame CHA P. thing, being indispensably bound to provide a good ship, able to perform the voyage. The opinion of this learned foreigner is fupported by two of his countrymen, Pothier and Emerigon. XI. n. 66. 1 Emeri Having thus fhewn that the doctrine of fea-worthiness, as Pothier Tr. eftablished by the decifions of our courts of justice, is con- d'Affurance. firmed by the declarations of foreign laws, and by the opin- gon, p. 580. ions of foreign writers; it is fufficient now to fay, that where the ship is not fea-worthy the policy of infurance is void, as well where the infurance is upon the goods to be conveyed in the fhip, as when it is upon the ship itself. For whenever a Val. 164. a cafe arises with refpect to damage done to goods through the infufficiency of the fhip, the question, whether the master or owner is liable to make good the lofs, depends upon af certaining, whether the ship was in a condition to perform the voyage at the time of her departure, or became defective from bad weather, and the perils of the wind and fea |