こ as to prior circumstances, they should have asked for that letter. The assured disclosed every thing which he knew as to the existing state of the ship at the time; it is a true statement of its then actual situation, and it suggests a former communication, so as to put the underwriters upon further inquiry, if they thought it material. Lawrence, J. said, 'If the underwriters wished for further information, it was their own fault that they did not (1) Freeland call for it, when the letter they saw referred to a former let- v. Glover, 7 ter.(1) East, 457. 'A representation' says Lord Ellenborough,' will be binding, A representaunless it be afterwards withdrawn.'(2) The assured may at any tion may be time before the policy is signed, withdraw any representation withdrawn. previously made,(3) by giving the underwriters explicitly to un- (2) Edwards derstand that he was mistaken in regard to the facts represented, v. Footner, 1 Camp. 530. or that he will not be held to a compliance with what he had (3) Carter v. verbally promised. Lord Ellenborough held that the assured Boehm, 3 virtually withdrew a representation made by him at the time of Burr. 1905. signing the slip, by making another and different representation at the time of signing the policy. He said, 'The first conversation was qualified and controlled by what followed.'(4) Section 4. Compliance with a Representation. (4) Edwards v. Footner, 1 Camp. 530. T. R. 186. It is sufficient that a representation is equitably and substantially complied with, and not requisite that the facts should be literally and precisely as they were stated.(5) If the existing facts or (5) De Hahn intelligence on which the representation is made, be on the whole . Hartley, 1 as favourable to the risk as they were represented to be, and T. R. 343; 2 correspond in general to the representation, the insurers have no ground of complaint, though the statement was not literally and minutely correct. Where it was represented that the vessel would sail in ballast, but the captain, without the owner's knowledge, took on board a cask of shoes and ten barrels of gunpowder; Kent, C. J. said, 'The representation of sailing in ballast was merely stating that the vessel would not be exposed to (6) Suckley the sea perils attending a loaded ship, and was substantially v. Delafield, performed.'(6) 2 Caines, 222. twenty men. It being represented that the vessel would sail with twelve The ship to guns and twenty men, she sailed with nine carriage guns and have twelve six swivels, and fourteen men, and seven boys. Boys were considered to be men within the description in the representa- (7) Pawson v. tion, and as the force appeared to be equivalent to that repre- Watson, sented, though not the same, the contract was held to be valid.(7) Cowp. 785; A vessel, French built, was represented to be owned by Ame- Doug. 12. n. rican citizens, and to have on board an original bill of sale, or The ship to an attested copy of it, and such a bill of sale was on board, but have on board on the ship's being captured was not produced, and the captain, on his examination before the Admiralty court at Halifax, denied that he had any such bill of sale on board. It was held that the representation was material, and had not been complied with. Kent, J. said, It would be absurd to suppose that the an original bill of sale. (1) Murray v. bill of sale on board, in a concealed situation, and never to be Alsop, 3 Johns. Cas. 47. See 1 Rob. 103. The ship re presented to be neutral. (2) Dawson v. 367. Johns. Cas. 173. n. (4) Alsop v. Coit, 12 Mass. Rep. 40. A good life. (5) Ross v. Bradshaw, 1 Bl. 312. used, fulfilled the intention of the parties. The only question then is, whether the bill of sale is a material paper.'(1) A ship represented to be neutral must have the documents necessary to prove its neutrality.(2) A representation that a ship was neutral, was held in New York to be equivalent to a warranty, (3) and it accordingly requires that the ship should be owned, documented, and navigated, in conformity with the representation. It being represented that a ship would 'sail as soon as the frigates, calculating to take advantage of their protection,' and she sailed before them; this was held not to be a compliance with the representation.'(4) At the time of effecting a policy on the life of Sir James Ross, he was represented to be a good life.' It appeared that he was subject to great inconvenience and a partial palsy, in consequence of a wound received at the battle of La Feldt. But as the wound appeared to be only inconvenient, and not dangerous, the representation was considered to be true.(5) Section 5. Effect of a Concealment or Misrepresentation. One of the conditions on which the underwriter subscribes the policy is, that he has been previously informed of all the material facts within the knowledge of the assured, and not presumed to be known to himself; and it appears from the preceding cases that a non-compliance with this condition-a concealment or misrepresentation-annuls his subscription and prevents the contract from being obligatory on him. If a material fact be misrepresented or suppressed, the contract will not bind the underwriters, although such fact related to only a part of the subject insured,(6) and though no loss arise from the circumstance concealed or misrepresented. In the case above cited, of an insurance from Berderygge to London, where the broker neglected to inform the insurers that the vessel was ready to sail on the first of December, from which the insurers might have supposed that she was out of time, she did not in fact sail until the 24th of that month, and therefore had the broker known and disclosed the actual facts, the premium would have been the same. But still the policy was void, for the insurers had a right to the information, and subscribed upon the condition of its being disclosed.(7). In the case of a policy upon the ship Davy, a letter had been received in which the writer said, "On the 12th I was in company with the Davy; at twelve at night lost sight of her all at once; the captain spoke to me the day before, that she was leaky, and the next day we had a hard gale.' This information was not communicated to the insurers. The ship in fact continued on her voyage until the 19th of the same month, when she was captured by the Spaniards. Chief Justice Lee 'thought it not material that the loss was not such a one as the letter imported; for those things are to be considered in the situation of them at the time of the contract, and not to be (1) Seaman v. judged of by subsequent events.'(1) Fonnereau, 2 A broker knowing that a ship, having on board a part of the goods insured, was reported to have been seen at sea deep (2) Lynch v. and leaky,' did not disclose this information to the underwriters. Dunsford, 14 Though it was testified that the ship was not deeply laden or Lynch v. Haleaky, the suppression of the information defeated the con- milton, 3 tract.(2) East, 494; Taunt. 37. Though material facts are suppressed or misrepresented (3) Bridges v. through mistake or forgetfulness, and without any fraudulent Hunter, 1 M. purpose, it has the effect to defeat the contract.(3) & S. 15. But according to one case there may be instances in which Concealment a concealment or misrepresentation may not avoid the policy. of an anteceA ship insured at and from Jamaica' was there in July, whence dent loss. the captain wrote in August to the owner in England, omitting to mention that the ship had struck upon a rock in Manchineal harbour, though she had been got off, before the captain wrote, without appearing to have suffered material damage. The policy was effected after the captain's letter had been received, and the circumstance of the ship's having struck, was not made known to the insurer. It afterwards appeared that the ship had been very considerably injured by the accident. Lord Ellenborough said, 'By the captain's protest there is evidence that he suspected the ship must have sustained damage. If it were but a dubious case he ought to have communicated it. If the captain might be permitted to wink at these circumstances without hazard to the owners, the latter would in such cases instruct their captain to remain silent, by which means the underwriter would' incur the certainty of being liable for antecedent loss. To prevent such a consequence, and considering that what is known to the agent is impliedly known to the principal, I think that no mischief will ensue from holding that the antecedent damage was an implied exception out of the policy. If the principle be new, it is consistent with justice and convenience. (4) The policy was accordingly held to be valid (4) Gladstone in respect to the other perils and losses insured against. v King, 1 M. This case does not come within any principle that has been & S. 35. distinctly recognised in any other. If it can be reduced to any general principle, it must be an exception to the rule that a concealment avoids the policy. The fact that the ship had struck, could not, in respect to the subsequent risks, be of any importance, except in relation to seaworthiness, in regard to which the assured is not required to make any representation. The case amounts to this, then, that the concealment, without fraud, of an antecedent loss, coming within the terms of the policy, but not affecting the other risks and perils insured against, does not avoid the policy, but only operates to exempt the insurers from the payment of such loss. It would be inconsistent with many of the preceding cases to go further than this, and say, that the concealment or misrepresentation, without fraud, of a fact which could not possibly affect all the risks in the policy,— Representation of a fact subsequent to the com the risk. (1) Middlewood v. Blakes, 7 T. R. 164. as the fact of national character, for instance, does not affect sea-risks, will not avoid the policy, but leave it valid in respect to the risks not affected, and throw upon the assured those that are affected, by the fact concealed or misrepresented. But if the question were new, reasons of some weight might be urged in favour of adopting such a principle. In the case of the captain's being restricted to one out of three courses, Mr. Justice Lawrence said, if the ship had been captured before she took the northern course, I should have mencement of thought that the asssured would have been entitled to a verdict.'(1) If this was a question of concealment, as the court appeared to consider it, another exception is furnished to the general rule, that a concealment makes the policy void from the beginning. Suppose the assured should represent that the ship would take an armament as a letter of marque at some intermediate stage of the voyage, and this representation should not be complied with; it would seem to afford no reason why the insurer should not pay a loss occurring before the non-compliance. If the insurers are liable for such antecedent loss, it is upon the principle that a representation does not avoid the policy until it is falsified, and accordingly that a misrepresentation or concealment, which does not relate to the beginning of the risk, will make the policy void only in respect to a part of the voyage. CHAPTER VIII. IMPLIED WARRANTIES AND CONDITIONS. Section 1. What Warranties and Conditions are implied. WHERE by the mere act of effecting insurance, the assured is presumed to give the underwriters to understand that certain facts are true, or certain acts shall be done, relating to the risk, this is an implied warranty. It is distinguished from a representation, principally, by the circumstance, that a representation must generally, at least, be expressed, either in writing or verbally, whereas an implied warranty is made by the mere act of effecting the insurance. The production of the policy by the assured is a proof of all the implied warranties and conditions on which it was made, but a representation or concealment requires other proof, which must be produced by the underwriter. The effect of a misrepresentation or concealment involves the sentation in principle of an implied warranty or condition; it avoids the policy because there is an implied agreement of the assured to make a fair disclosure of the circumstances affecting the risk, and the insurer subscribes upon the condition that he has complied with this agreement. The effect of a misrepre volves the principle of an implied warranty. seaworthiness of the ship. (1) Lee v. By effecting a policy, whether it be on the ship, freight, or The policy cargo, or the commissions or profits to accrue upon the cargo, implies the the assured is always understood to warrant that the ship is seaworthy, or that the materials of which the ship is made, its construction, the qualifications of the captain, the number and description of the crew, the tackle, sails, and rigging, stores, equipment and outfit, generally, are such as to render the ship in If the ship be not 342; Marsh. Beach, Park, every respect fit for the voyage insured.(1) If the ship be not such as the assured is understood, by effecting the policy, to 160; Oliver v. warrant, the condition on which the liability of the underwriter Cowley, depends is forfeited, though the unseaworthiness arises from Park, 343; some latent defect which the assured could not have discovered Warren v. or prevented.(a) Marsh. 161; Unit. Ins. Co. Lord Redesdale said, 'Unless the assured were bound to take 2 Johns: 231. care that the vessel was in every respect seaworthy, the consequence would be to render those chiefly interested, much more (2) Wilkie v. careless about the condition of the ship and the lives of those Geddes, 3 engaged in navigating her."(2) Dow, 60. ter and the le It has been held also that the policy implies a warranty that Implied warthe vessel shall be documented and navigated in conformity to ranty of naits national character, and that the voyage shall be conducted in tional characcompliance with the laws and treaties of the country where the gal conduct of policy is made, or to which the vessel belongs, or of which the the voyage. assured is a subject, and also in compliance with the law of na tions. Section 2. Seaworthiness of the Ship. materials and The policy implies the seaworthiness of the ship. To render The ship must a ship seaworthy it must be staunch and of sound materials, or be of sufficient rather it must be sufficiently staunch and sound for the employ- construction. ment and situation intended by the insurance. A ship of which the timbers were decayed and the iron work wrought loose' (3) Douglas was considered not to be seaworthy.(3) v. Scougall, 4 Dow, 269. The ship must be of a proper construction. A vessel constructed without knees was held not to be seaworthy for a foreign voyage.(4) The question occurred in Pennsylvania whether (4) Watt v. the want of cabin doors, for which sliders were, or had been Morris, 1 substituted, to close the entrance to the cabin, and the want of a Dow, 32. tarpawling covering of the hatches, make a vessel unsuitable for (5) Bell. the navigation of Lake Erie; Tilghman, C. J. seemed to be of Reed, 4 Bin. opinion that these circumstances did not make the vessel unfit 127. for this service.(5) The ship not It was said by Mr. Justice Radcliff that 'a vessel is not sea- able to carry worthy, unless she be in a condition to carry a full cargo.'(6) a full cargo. But this remark must be limited to the particular subject under (6) Abbott v. Broome, 1 consideration, the question being whether the vessel was sea- Caines, 302. worthy for the purpose of carrying on to New York a cargo (a) A provision of the policy is mentioned in one case that any insufficiency of the ship not known to the assured should not prejudice the insurance.' Vallejo v. Wheeler, Cowp. 148. |