other words, had the intention to depart from the usage of the voyage been made known to the underwriters, they would have been held liable for the loss. (a)

The question whether the assured, by a representation, may waive the benefit of a usage that increases the risk, which is that discussed in the text, is not noticed by Mr. Phillips; but the two questions, although varying in form, are the same in principle. If the underwriter may, by parol, waive his right to insist on the observance of a usage which is favorable to the risks, it must be equally competent to the assured in the same manner to waive his right to follow a usage which is unfavorable.

In Parks v. Gen. Int. Ins. Co., (5 Pick. 37,) the principle that a representation may supersede an implied warranty is distinctly recognized by Wilde, J., who says, that "a "condition or implied undertaking not expressed in the 'policy, may be superseded by a verbal or written state

66

"ment."

It is even probable that in some cases the presumed knowledge of the insurer of the condition of the vessel at the commencement of the risks, without an express representation, would be held to supersede the implied warranty of seaworthiness. The following case is stated by Emerigon :-Insurance was made at Marseilles on four vessels, the prizes of a French cruiser, and a total loss was claimed on one of them that had been recaptured by the English. It was known to the underwriters when they subscribed the policy that this vessel had been taken after a conflict, but the facts that she had lost two of her masts, and was otherwise injured, were not disclosed to them, and they insisted that by this concealment

(a) Vide Firemen's Ins. Co. v. Lawrence, (14 Johns. 59,) where this opinion is ap proved by Chancellor Kent.

the contract was annulled. They were however decreed to pay the loss, upon the grounds, that as they knew that the vessel had been taken in battle they were bound to presume that she was more or less disabled, and if they meant that the contract should depend at all upon her actual condition, it was their duty to inquire into the extent of the damage she had probably sustained. By our law the concealment of facts relating to the condition of the vessel at the inception of the risks, never avoids the policy, since all such facts are deemed to be comprehended in the implied warranty of seaworthiness; yet, I cannot doubt that in a similar case the policy would be held to attach, notwithstanding the unseaworthiness of the vessel, exactly for the same reasons that led the French tribunals to determine that the concealment was not fatal. The consent of the underwriters to assume the risks without regard to the actual condition of the vessel, might be justly presumed. (1 Emerigon, p. 172.) It is also stated by Emerigon, that within his knowledge, an insurance had been made at Marseilles on a vessel that had before been condemned at Genoa as unseaworthy; and that, in his opinion, had this vessel been lost by shipwreck, the underwriters would have been liable, as her actual state had been disclosed to them. (Emerigon, ut sup.)

I consider the language of Lord C. J. Abbott, in Weir v. Aberdeen, (2 B. & Ald. 320,) as a distinct recognition of the right of the underwriters to waive the warranty of seaworthiness. It is true that the agreement in that case was in writing, and endorsed on the policy, but had it been made by parol, it is fairly to be inferred from the reasoning of the court, that it would have been held to be equally valid.

I remark in conclusion, that the two questions, whether a representation may supersede a usage, and may super

sede an implied warranty, upon a proper analysis are seen to be identical. In both cases there is an obligation implied by law, and in both the proper and sole inquiry is, whether there is any thing in the nature of this obligation to prevent it from being renounced by the party in whose favor it exists; that is to prevent the application of a general and undoubted rule. It seems impossible to give to this question any other than a negative answer.

NOTE XVI.

The earliest case in which the existence of the rule is recognized is Pawson v. Watson, (Cowper, 785,) in which the defendant relied on written instructions to the broker, shown to the first underwriter, but not to himself. A most important distinction was however taken by Lord Mansfield in this case between a representation of future facts operating as an agreement, and a representation of an existing or past fact. The representation, as the reader will recollect, related to the intended armament of the ship. His lordship said "The two first underwriters before the "court, are Watson and Snell; says Watson, 'It is "a part of my agreement that the ship shall sail with "twelve guns and thirty men; and it is so stipulated that

nothing under that number will do.' The answer to "this is, 'read your agreement-read your policy.' There "is no such thing found there. It is replied, 'Yes, but "in fact, there is, for the instructions upon which the "policy was made, contain that express stipulation.' The "answer to that is, there never were any instructions shown "to Watson, nor were any asked for by him. What "color then has he to say, that those instructions are "any part of his agreement? It is said, he insured

"upon the credit of the first underwriter. A represen"tation to the first underwriter has nothing to do with "that which is the agreement or the terms of the policy. "No man who underwrites a policy subscribes, by the "act of underwriting, to terms which he knows nothing "of. But he reads the agreement, and is governed by "that. Matters of intelligence, such as that a ship is, or "is not missing, are things in which a man is guided by "the name of a first underwriter, who is a good man, "which another will therefore give faith and credit to, "but not to a collateral agreement which he can know nothing of." (a) Upon the grounds implied in these observations, that the instructions not being inserted in the policy were not a warranty, and not being shown to Watson and Snell, were not, as to them a representation, the cause as against them was decided; and his lordship, then passing to the case of another underwriter, to whom the instructions had been shown, proceeded to show that the representation had been substantially complied with. This distinction between a representation operating as an agreement, and one affecting the policy only on the ground of fraud or mistake, is not unreasonable in itself; and, I am not aware that it has ever been expressly overruled. It is not however noticed by any of the elementary writers, nor is the fact of its existence adverted to in any subsequent decision.

In the case of Barber v. Fletcher, (Douglass, 306,) Lord Mansfield again recognizes the rule, saying, "It has cer"tainly been determined in a variety of cases, that a re"presentation to the first underwriter extends to the "others." Pawson v. Watson and Barber v. Fletcher were

(a) The important bearing of these observations-the distinct admission that a prospective representation is a collateral agreement-upon the question discussed in Note IX. will not escape the diligent reader.

decided respectively in 1778 and 1779, and it certainly appears strange that nearly forty years afterwards Lord Ellenborough should have felt himself at liberty to question the propriety of adhering to the rule which they establish. (1 M. & S. 13.) The other English cases on this subject are Stackpole v. Simon, (Park, 8 ed. 933.) Feise v. Parkinson, (4 Taunt. 640.) Forrester v. Pigou, (1 M. & S. 13.) Bell v. Carstairs, (2 Camp. 543,) and Marsden v. Reid, (3 East, 572,) of which it is only the last that requires a special notice. In this case the name of the underwriter to whom the representation was made that the vessel was American, did not appear first on the policy, but on the contrary was even subsequent to that of the defendant; he was, however, the first who agreed to insure, and as such his name stood first on the separate slip of paper on which it is usual in England to mark down the names of the underwriters in the order in which they are applied to, and agree to subscribe the policy. It is not stated in the report that the slip was shown to the defendant when he was applied to, though such evidence would seem to have been necessary to warrant the application of the rule. The question raised was whether the slip could be received in evidence for the purpose of showing that the person to whom the representation was made, was in fact the first underwriter, and the court held that it could not be received for that purpose for want of a stamp, and added, "The effect of "the evidence being to show through the medium of a wri"ting that the contract between the parties was different "from that which it appeared to be upon the face of the "policy itself, inasmuch as the true contract was to be evi"denced by the order in which the underwriters had en"gaged, as appeared by the paper produced." I agree with Mr. Phillips, that this reasoning is not very satisfactory, and it is especially difficult to understand how the

66